Remote workers: Guidance on breaks, leave

Working in the office five days a week is a thing of the past.

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  • | 12:15 a.m. April 6, 2023
  • The Bar Bulletin
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Much like other aspects of life, the last few years have shaken up employment laws and practices.

Ashlea Edwards

Working in the office five days a week is a thing of the past. Now, depending on the industry, employees expect to have more flexibility to work from home and to enjoy schedules that help to better balance their priorities.

However, for nonexempt employees, the simple act of working remotely or changing to a four-day workweek may have farther-reaching implications regarding eligible wages under the Fair Labor Standards Act (FLSA) and leave under the Family Medical Leave Act (FMLA). 

The U.S. Department of Labor issued a Field Assistance Bulletin on Feb. 9, 2023, to provide further guidance to ensure employees who telework or work remotely are being paid properly under FLSA standards.

The bulletin clarified that the FLSA requirement for employers to compensate employees for all hours worked includes work performed remotely or via telework.

Like in the office, employers must compensate employees for breaks of 20 minutes or less for things like stretching, coffee refills or bathroom breaks. If the 20-minute break turns into a longer break that permits an employee to use the time for their own purposes and where the employee is relieved from duty, employers are not required to compensate workers. Likewise, meal breaks are not compensable under the FLSA. 

In addition to 20-minute or shorter breaks or meal breaks, the bulletin details an employer’s requirement to provide a place shielded from view and a reasonable break for employees to express breast milk when employees are working at an off-site location (as well as when an employee is teleworking from home or another location).

A “place shielded from view” is considered a place that is free from videorecording of any kind via camera, telephone, computer, etc.

While the breaks themselves are required, the FLSA does not require employers to make them compensable.

Notably, however, if an employee uses an already compensable break to express breast milk, an employer must compensate the employee accordingly.

This guidance is particularly helpful in light of the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) effective Dec. 29, 2022, which expands workplace protections for employees with a need to express breast milk. 

Like determining whether breaks are compensable, the bulletin also discusses how employers must also ensure they are properly providing job-protected leave for specified family and medical reasons (whether paid or unpaid) under the FMLA for remote workers.

To be eligible for FMLA leave, an employee must work for the employer for 12 months, have at least 1,250 hours of service during the 12-month period preceding the leave, and work at a location where the employer has at least 50 employees within 75 miles.

As you can imagine, the biggest rub is the third eligibility requirement regarding work location. 

Notably, under the FMLA, an employee’s home is not considered a worksite.

When working from home, an employee’s worksite is considered the office to which they report or receive assignments from and if 50 or more employees work within 75 miles of that worksite, including employees who telework or report to that office, that employee is eligible for FMLA.

In addition to the requirements discussed, employers and employees alike should pay close attention to company policies and applicable local or state wage and hour laws that may impact requirements under the FLSA and FMLA.

Ashlea Edwards is an associate attorney in Akerman LLP’s Jacksonville office, where she practices labor and employment law.