The U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (FAB 2023-1) to clarify when the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) apply to remote workers. At the same time, DOL issued Opinion Letter 2023-1-A stating that eligible employees with serious health conditions may indefinitely use available FMLA leave if they need to work reduced schedules.
FLSA as Applied to Nonexempt Remote Workers
FLSA requires employers to pay employees for all hours worked, whether in the workplace, their homes, or another remote location. “Hours worked” includes not only time spent actively working but also time spent waiting or on break. According to the FAB, break times of 20 minutes or less must be counted as time worked for nonexempt workers, but bona fide meal breaks of 30 minutes or more are not counted as time worked. The FAB also clarifies that FLSA does not require nursing employees to be paid for breaks to express milk, although state law may require payment during these breaks. If the worker is not relieved from duty during these breaks, they must be paid. The FAB does not explain the compensable and non-compensable waiting time boundaries when a worker is working remotely.
FMLA and the Hours-of-Service Requirement for Remote Workers
The DOL’s FAB also explained that for the FMLA, a remote employee’s worksite for FMLA eligibility purposes is the worksite to which the employee reports or from which they receive their assignments. If fifty or more employees are employed within 75 miles of that worksite, then the employees meet the FMLA eligibility requirement.
In its opinion letter, the DOL also reminded employers of their obligations under the FMLA and the Americans with Disabilities Act (ADA) to allow employees with serious health conditions to work reduced schedules. For example, employers cannot reject an employee’s request for a reduced work schedule under the FMLA by arguing that the request is better addressed under the ADA Amendments Act. The DOL reiterated that employees are entitled to up to twelve work weeks per 12-month leave year, not necessarily 480 hours per year. An employee regularly scheduled to work more than 40 hours per week may be eligible for more than 480 hours when taking intermittent or reduced leave under FMLA.
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