Updated FLSA and FMLA Guidance for Remote Employees

/in /by

APPLIES TO

All FMLA and FLSA Employers

EFFECTIVE

February 9, 2023

  

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Quick Look

  • Remote workers receive the same meal, rest, and lactation period protections as other employees.
  • Remote workers meet the 75-mile radius eligibility requirement under FMLA if they report to an office or receive assignments from a worksite with at least 50 employees in a 75-mile radius.

Discussion

The Wage and Hour Division of the U.S. Department of Labor issued a Field Assistance Bulletin providing guidance on protections for remote workers under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The following are key points made to emphasize that remote employees receive the same benefits as in-person workers.

Break Periods. When employees take short breaks of 20 minutes or less, the employer must treat such breaks as compensable hours worked regardless of whether the employee works from home, the employer’s worksite, or some other location that is not controlled by the employer.

Meal Periods. Regardless of work location, bona fide meal periods, where employees are completely relieved from duty and are able to effectively use the time for their own purposes, are not hours worked under the FLSA.  Meal periods interrupted by work activities mean that the employee was not relieved of all duties and the meal period must be compensated.

Lactation Periods. FLSA-required lactations periods apply even when an employee works remotely. An employer must provide an appropriate place for an employee to pump breast milk when the employee is working at an off-site location. This includes ensuring that an employee cannot be viewed by any employer-provided or required video system (e.g., a computer camera, security camera, or web conferencing platform) during lactation periods.

FMLA Eligibility. Remote employees are eligible for FMLA leave on the same basis as any other employee. Employers must keep accurate records of hours worked to determine FMLA eligibility, otherwise it is the employer’s burden to show that the employee has not worked the required 1250 hours in the last 12 months.

FMLA 75-Mile Radius. To be eligible for FMLA leave, employees must work at a location that has 50 employees within a 75-mile radius. A remote employee’s personal residence is not a worksite. The worksite is the office to which they report or from which their assignments are made. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.

 

Action Items

  1. Review the Bulletin here.
  2. Review meal, rest, and lactation period practices to ensure consistent enforcement.
  3. Have appropriate personnel trained on FMLA eligibility for remote workers.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase