By most public health indicators, the COVID-19 pandemic is behind us. Remote work, a by-product of the pandemic, is here to stay. At the apex of the pandemic in late 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) 2020-5 to provide guidance to businesses on “how to track the number of hours of compensable work performed by employees who are teleworking . . .” or working remotely away from any worksite controlled by their employer. The WHD’s focus was to address how to properly calculate compensable time for travel for employees who divided their work time between home and the office. Read more about the WHD’s partial-day telework what-ifs.
On February 9, 2023, with many businesses now fully committed to telework, the WHD issued FAB 2023-1, to provide employers utilizing remote workers with additional guidance on: 1) how to ensure that telework employees are paid properly under the Fair Labor Standards Act (“FLSA”); 2) how to apply the FLSA’s requirement to provide reasonable break time for nursing employees while teleworking from home or another location; and 3) how to apply leave eligibility rules under the Family and Medical Leave Act (“FMLA”) when employees telework or work remotely from an employer facility.
The FLSA Basics
The FLSA requires employers to pay non-exempt (typically, hourly wage) employees for all hours worked, including for work performed in their home or otherwise away from their employer’s premises or job site. An employee’s compensable workday on any particular day generally begins when the employee commences their first “principal [work] activity” and ends when they cease such principal work activities.
What about Employee Breaks during the Workday? Are they Compensable?
Under the FLSA, short breaks – those that are 20 minutes or less – must be counted by an employer as time worked by the employee, irrespective of whether the employee is teleworking at home, working at the employer’s facility, or working at some other location not controlled by the employer. Short breaks, e.g., to go to the bathroom or grab a cup of coffee, are treated as compensable work time under the FLSA on the theory that short breaks primarily benefit the employer by reducing employee fatigue and enhancing overall employee productivity.
Do Employers Have to Pay for Employee Meal Breaks or Off-Duty Time?
However, employee meal breaks – typically 30 minutes or more in which the employee is completely relieved from work duties — do not have to be treated as compensable work time under the FLSA. The same rule applies to employee breaks that are longer than 20 minutes, but only if the employee can use that time for their own purposes and is completely relieved from work duties.
What are Break Time and Privacy Rules for an Employee Nursing a Child?
Under the FLSA, employers are required to provide covered employees with “reasonable break time for [the] employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth. The requirement is applicable “each time such employee has need to express the milk. . ..” The frequency and duration of breaks for nursing employees will vary, according the WHD, depending on the individual employee’s needs, but generally cannot be denied by the employer. Employee breaks taken for the purpose of expressing milk are not considered compensable time under the FLSA, unless the employer provides compensated breaks to its employees generally. Additionally, employers are required to provide nursing employees a place “other than a bathroom that is shielded from view and free from intrusion from coworkers and the public . . .” for use by the employee to express breast milk. These protections apply to the employer’s worksite, and also when an employee is teleworking from home or another remote location.
How to Determine FMLA Eligibility for Telework Employees?
First, the FMLA basics. To use FMLA leave, an employee must work for a “covered” employer and be “eligible” for leave. To be “eligible” for FMLA leave, the employee must have worked for at least 12 months and have performed at least 1,250 hours of service during the 12-month period immediately preceding the leave, for a “covered” employer. A “covered” employer is one that has at least 50 workers within a 75-mile radius.
However, the FMLA’s leave eligibility rules and coverage requirements are applied differently for those employers with teleworking employees. To determine FMLA leave eligibility, the employee’s personal residence is not counted as their worksite. Rather, the worksite for telework employees is the “office to which they report or from which their assignments are made.” This means that an employer must count when determining FMLA employee leave eligibility and employer coverage of all employees who telework within a 50-mile radius from the employer’s worksite.
What Does this Mean for Your Business?
Employers who allow workers the flexibility of teleworking from home or away from the premises managed or controlled by the employer still have continuing obligations to comply with the FLSA’s requirements to pay those employees for all compensable work time and provide breaks to nursing employees to express breast milk in a location free from intrusion and in privacy. For FMLA leave coverage, employers must take into account that telework employees are deemed to be working out of the employer’s worksite to which the employees report or receive their work assignments, and not their home or remote work location.
We will continue to provide updates on employer best practices for telework employees. If you have any questions related to your current telework policies and practices, please contact Doug Taylor, at email@example.com or (703) 525-4000.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.
 Note that compensation for such breaks may be required under state or local law.