On February 9, 2023, the Wage & Hour Division of the Department of Labor issued a Field Assistance Bulletin (No. 2023-1) on (1) how to ensure workers who telework are properly paid in accordance with the Fair Labor Standards Act (FLSA), (2) how to apply FLSA’s protections to nursing employees to express milk while teleworking from their home or another location, and (3) how to apply eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework or work away from an employer’s facility.
Hours Worked Under the FLSA
The FLSA requires employers to pay nonexempt employees for all hours worked regardless of the location of work. “Hours worked” includes not only active productive labor but also time spent on short breaks of 20 minutes or less. Whether an employee works from home or at the employer’s worksite, these short breaks must be considered work time.
Bona fide meal breaks (usually 30 minutes or longer), when an employee is completely relieved from work duties, are not considered hours worked nor are breaks that are longer than 20 minutes when the employee can effectively use the time for their own purposes. Again, this rule applies regardless of where the employee performs his work or take his breaks.
Break Time for Pumping Breast Milk
The FLSA requires employers provide covered employees with “reasonable break time” to express breast milk for up to one (1) year after the birth of their nursing child, as well as a location to express milk that is shielded from view and free from intrusion by co-workers and the public. This applies to employees who work at their worksite and to employee who telework from home or another location.
Employers cannot deny employees the right to take this needed break. While employers are not required to compensate nursing mothers for these breaks, an employer that compensates employees for breaks must compensate a nursing mother who uses her break time to express milk. Additionally, if an employee is not completely relieved from duty during these breaks, the time must be compensated as work time.
Telework and the Family and Medical Leave Act
The FMLA provides eligible employees with job-protected leave for qualified medical and family reasons. To be eligible for FMLA leave, an employee must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite, and the employee must have worked for at least one year and worked at least 1,250 hours in the year prior to taking leave. The law requires employers to maintain employees’ health benefits during FMLSA leave and to restore employees to their original or equivalent position when they return to work.
Employees who work remotely are entitled to the same FMLA benefits as those who work at on site. For FMLA eligibility purposes, a teleworker’s worksite is the office where the employee reports for work or the office from where they receive their assignments.
The Bottom Line
Employees who work remotely, whether from home or another location, are still entitled to the rights and benefits provided by the FLSA and the FMLA (if applicable) as set forth above. If you have any questions navigating issues arising under these laws or other employment-related matters, please feel free to contact Ellen.
Ellen M. Leibovitch
Board Certified Labor & Employment Lawyer
ASSOULINE & BERLOWE, P.A.
2385 NW Executive Center Drive, Suite 100
Boca Raton, FL 33431
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