U.S. DOL Issues Guidance to Employers for Remote Worker Breaks (FLSA) and FMLA Leave
February 16, 2023
By Michael Burns, courtesy SBAM Approved Partner, ASE
Last Thursday the U.S. Department of Labor (DOL) issued guidance to its regional administrators and field staff on remote worker rights on breastfeeding, breaks, and Family and Medical Leave practices. The DOL guidance states the Fair Labor Standards Act (FLSA) applies the same to remote/telework employees as those working at an office, retail outlet, construction site, or factory or other workplace.
DOL guidance stated that non-exempt (hourly or salaried) employees working from home are entitled to paid rest breaks if the break taken is 20 minutes or less (29 C.F.R. Sec. 785.18). Meal periods that are typically a half hour (30 minutes) or more where employees are completely relieved from all duties and work activities can be unpaid. Employers can also provide unpaid breaks if they are longer than 20 minutes and if the employee can use their time for their own purposes and is completely relieved from duty. This time off is not considered hours worked (29 C.F.R. Sec. 785.16).
Breast Feeding and Pumping Break Time
As we also saw last week with local auto manufacturer Stellantis, the DOL will enforce the right for women to take breaks to breast feed or pump milk in a private place. Stellantis was investigated by the DOL for not providing enough appropriate locations for mothers to pump milk or breastfeed at its Sterling Heights plant. They were allegedly also requiring a doctor’s note and baby birth certificate as proof to access a nursing area. Stellantis has agreed to correct this situation.
The FLSA requires employers to provide covered employees “reasonable break time for employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth time each time the employee has a need to express the milk.” Employers must also provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” (29 U.S.C Sec. 218(a) – the recently passed PUMP Act.
Also do not forget to check state law on break times. Michigan follows the federal FLSA, but certain other states have more restrictive requirements for breaks and meal periods. ASE members can research state by state employment and labor laws at our website in either the CCH HR Answers Now or Zywave libraries.
This would include ensuring a worker at an off-site location such as a client’s worksite has a location meeting the privacy requirements and is provided that time off and place “shielded from view.” This includes computer and security camaras or a web conferencing platform. Employers also cannot limit the frequency and duration of the breaks. The guidance also addresses the situation where an employee chooses to attend a video meeting or conference call – even off camera. The guidance states that in that situation the employee is not relieved of duty and must be paid.
Telework and Family and Medical Leave Act (FMLA)
Under the FMLA (employers 50 and over in size) eligible employees are entitled to unpaid but job protected leave for family and medical reasons as specified under the law. Employees that are otherwise qualified for FMLA leave and are at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite are covered. Remote work where employees are located at home or even at second homes away from the main worksite have been questioned as covered or not by the FMLA. A recent federal Court ruling held for an employee using the location where the employee’s home office was to determine that the employee was in fact covered. The DOL guidance states an employee working from home or an otherwise teleworking home office is the worksite if that is where their assignments are made from. The guidance provides the following example:
Employee works in data processing for an advertising company headquartered in a large city and teleworks from her home more than 75 miles away. Many of the employees in Employee’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters. Employee ’s worksite, for FMLA eligibility determination, is the company’s headquarters. The company’s headquarters is also, under the FMLA, the worksite for the data processors in Employee ’s department who telework from different cities and states but report to and receive assignments from their manager at headquarters. There are 300 total employees who work at or within 75 miles of the company’s headquarters. Thus, the employee is considered to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite even though she herself does not work within 75 miles of the company headquarters.
Under the FLSA, employers are advised to treat remote workers pretty much the same as those at the normal worksite for rest and meal break purposes. Under the FMLA, all hours worked are counted for purposes of determining an employee’s FMLA eligibility both worked from home or in combination with working at another or various worksites.
Source: Associated Press: Stellantis to Open More Lactation Rooms at Michigan Plan (2/9/2023); USDOL Field Assistance Bulletin No. 2023-1 Telework Under the Fair Labor Standards Act and Family and Medical Leave Act (2/9/ 2023)