DOL Clarifies Whether FLSA and FMLA Protections Apply to Remote Employees

The U.S. Department of Labor (DOL) recently issued new guidance regarding how remote employees should be paid under the Fair Labor Standards Act (FLSA) and when they are eligible for leave under the Family and Medical Leave Act (FMLA). The FLSA requires covered employers to pay nonexempt employees for all hours worked, including certain rest periods. The FMLA allows eligible employees to take job-protected leave for specified family and medical reasons. The DOL clarified whether remote employees are eligible for the same protections under these statutes as employees who work at the employer’s worksite.

Protections Under the FLSA for Remote Workers

Employees commonly take short breaks during the workday to go to the bathroom, grab a cup of coffee, stretch or simply rest. The FLSA provides that rest breaks “promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.” A rest break of 20 minutes or less is compensable under the statute. The DOL recently clarified that employers must treat these breaks as compensable hours regardless of whether an employee works from home or at a worksite.

The FLSA provides that bona fide meal breaks of 30 minutes or more are not considered working time. Similarly, breaks longer than 20 minutes that permit an employee to use the time for their own purposes and during which they are completely relieved of their duties are not hours worked. The DOL clarified that these breaks are not compensable regardless of the location from which the employees perform their work. For example, if a remote employee takes a 30-minute break to cook dinner or fold laundry, that break is not compensable.

The FLSA also requires that employers provide covered employees a reasonable break for an employee to express breast milk that is shielded from view and free from intrusion from coworkers and the public. The DOL recently clarified that this also applies to employees who are teleworking from home or another location. The employee is entitled to be free from observation by a computer camera, security camera or web conferencing platform when they are expressing breast milk regardless of the location they are working from.

Protections Under the FMLA for Remote Workers

The DOL has confirmed that employees who telework are eligible for FLMA leave on the same basis as employees who report to any other worksite. Employees are eligible for FLMA leave when they have worked for the employer for at least 12 months at a location where the employer has at least 50 employees within 75 miles of the worksite. An employee’s residence is not considered a worksite for FLMA eligibility. However, an employee who teleworks from home can still be eligible for FLMA leave if the count of employees within 75 miles of the worksite is 50 or more. The 50-employee count includes employees who telework and report to or receive assignments from the worksite. Therefore, an employee that teleworks more than 75 miles away from a company’s worksite can still be eligible for FLMA leave if 50 or more employees are employed within 75 miles of the worksite.

Employer Takeaways

In summary, covered employees who work from home or remotely from another location are entitled to the same rest, meal and nursing break protections under the FLSA as employees who work at the employer’s worksite. Similarly, covered employees who telework have the same eligibility for job-protected leave under the FMLA as employees who work at the worksite.

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