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DOL Releases Guidance Covering Telework, FLSA, Lactation, and FMLA

February 14, 2023
On February 9, 2023, the U.S. Department of Labor (DOL) issued Field Assistance Bulletin (FAB) No. 2023-1, addressing the following topics for employers and their teleworking employees:
  • The Fair Labor Standards Act (FLSA), ensuring teleworking employees are paid correctly, and how to apply FLSA-mandated break time for nursing employees to express milk while teleworking.
  • The Family and Medical Leave Act (FMLA) and determining eligibility when employees telework or work away from an employer’s workplace.

Employees who work from home, telework, or work away from their employer-controlled workplace continue to be covered by FLSA and FMLA protections. Under the FLSA, employees (including those who telework) must be paid for all hours worked and short rest breaks. For breaks to express breast milk, the FLSA doesn't require employers to compensate nursing employees for breaks taken to express milk; but when an employer provides compensated breaks, an employee (to include those who telework) who uses that break time to express milk must be compensated for the break. In addition, consistent with the FLSA’s general requirement, if an employee is not completely relieved from duty during these breaks, the time must be compensated as work time. If a remote employee chooses to attend a video meeting or conference call, even if off camera, generally the employee in that case is not relieved from duty and, therefore, must be paid for that time. Protections under the FLSA apply equally to employees who telework as they do to employees working at an office, factory, construction site, retail outlet, or any other worksite location.

Here is a link to the federal PUMP at Work rules (signed 12/29/22 and in effect now):

Here is a link to current NYS lactation rules:  Governor Hochul signed legislation on 12/9/22 expanding accommodations for breastfeeding in the workplace. The expanded rules go into effect 6/7/23.

Under the FMLA, all the hours an employee works are counted to determine their FMLA eligibility. This includes when they telework from home, consistently or in combination with working at other worksites. The FMLA also requires that they work at a location where the employer has at least 50 employees within 75 miles where the employee works; however, under the FMLA, the employee’s personal residence is not a worksite. So for a teleworker, this worksite threshold is fact-specific to them and based on certain elements of their job. For instance, where does the teleworker report for work? Where is the office where they get their assignments? Either of these locations could be established as their workplace and then the threshold is applied (are there at least 50 employees within 75 miles of that location?).

The DOL provides the following example: “Beatrice 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 Beatrice’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis by the manager who works at the company headquarters. Beatrice’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 Beatrice’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, Beatrice 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.”

Source: Mineral HR Compliance Portal (Greater Rochester Chamber members, click here to request complimentary Mineral access)


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