Out of (Work)site, Out of Mind? How Remote Work Affects Break Periods and FMLA

Feb 20, 2023 8:30:00 AM

As many employers have embraced the option of remote workers, this new way of doing business for many companies has opened up a lot of questions as it relates to the Federal Labor Standards Act (FLSA). In response, the Department of Labor issued Field Assistance Bulletin No. 2023-1 (FAB) on February 9, 2023, which set out to clarify some questions that have come up repeatedly in regard to remote work, rest periods, and FMLA.

Meal and Break Periods

As a reminder, the Bulletin reiterates the federal regulations around meal and break periods. While there is no federal requirement to provide meal or break periods (although state or local law may differ), there are requirements if a nonexempt employee is provided time for meals or resting. If an employee is provided with a break period of 20 minutes or less, this time must be paid. For longer rest periods, such as a 30-minute lunch break, the time does not need to be paid if the employee is completely relieved from duty. Other off-duty periods of longer than 20 minutes may also be unpaid if completely relieved from work.

The DOL states in the FAB that these rules do not change if an employee is working remotely. Because of this, you should set clear expectations when it comes to meal and break periods. Unless otherwise regulated by state or local laws, you have the freedom to decide if your nonexempt employees will have a set schedule for breaks, such as meal periods being scheduled for 12 p.m. to 1 p.m. with a 10-minute break in the morning and afternoon, or if you want to offer more flexibility to employees to set their own schedule and have them clock out when they will not be working for more than 20 minutes.

Employers also have a responsibility to count time as hours worked if they have reason to believe the employee was working. For example, if your employee clocked out for lunch from 12 p.m. to 1 p.m., but there were a series of emails sent out between 12:15 p.m. to 12:30 p.m., you should speak with the employee to see if they were, in fact, working, and pay for this time if they were, regardless of them working from home.

Lactation Breaks

Another regulation the FAB provided clarity on was lactation breaks. Federal law states that employers must provide employees with a reasonable amount of time to express breast milk to nurse a child for up to one year after the child’s birth as often as needed. They also must provide a location to do so that is shielded from view with a locking door, and it cannot be a restroom.

For remote workers, the “shielded from view” requirement means an employer must ensure that the employee cannot be observed at these times. If your remote workers are required to be on camera or a web-conferencing platform as a way to monitor their work, you are required to ensure they are free from this monitoring during lactation breaks.

FMLA

The Family and Medical Leave Act states that employers with at least 50 employees within a 75-mile radius must provide up to 12 weeks of unpaid, job-protected leave for certain reasons, such as serious health conditions or caring for a new child to eligible employees. With remote work comes the ability to hire employees from various cities and states, and since your employees come from all corners of the country, you don’t have to worry about FMLA, right? Not necessarily.

The FAB addressed the question of how to count employees for the sake of determining if an employer is covered by FMLA. Although you may not have 50 employees within a 75-mile radius, you would need to count your employees based on the office to which employees report or from which their assignments are made. For example, if your company is headquartered in New York City and you have 30 employees that work on-site and 20 customer service representatives working remotely across the country, you would count all 50 of these employees for the sake of determining FMLA coverage for your company; the customer service representatives may not be working within 75 miles from headquarters but, because their assignments come from this location, they would need to be included in the employee count.

While remote work is a great way to provide flexibility to your employees and open up your talent pool to employees you otherwise would not have access to, make sure you don’t run afoul of any federal, state, or local laws that you would still be held to. Don’t forget to read about how state laws can affect remote work and reach out to your FrankAdvice HR Consultant to make sure you are staying compliant.

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Out of (Work)site, Out of Mind? How Remote Work Affects Break Periods and FMLA

Feb 20, 2023 8:30:00 AM

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