DOL guidance for remote workers under FLSA & FMLA

Since the pandemic, companies have dealt with the complexities of employment law related to remote and hybrid workers. It’s estimated that as of 2022, 26% of employees in the United States work remotely, and it’s projected that the number will reach 36.2 million by 2025. During the pandemic, 40% of workers reported being more productive while working from home compared to working in an office. Additionally, 16% of U.S. companies operate completely remotely.

In February, The federal Department of Labor’s Wage and Hour Division (WHD) released guidance regarding the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) for remote workers. Although there has been a recent push for employees to return to the office, the Department of Labor (DOL) guidance is still likely to be appreciated.

We’ve covered remote work compliance in a previous article, feel free to check it out if you haven’t already.

The DOL Explains When FLSA, FMLA Cover Remote Employees

We provide an overview of each publication below. If you have any questions about FMLA or FLSA after reading this article and reviewing the two publications, please do not hesitate to contact our team.

The DOL provided clarification on how employers can implement the FLSA for remote workers who are not exempt, as well as the eligibility requirement for hours of service under the FMLA for telecommuters. The Field Assistance Bulletin and Opinion Letter FMLA2023–1-A offer valuable guidance for employers grappling with the complexities of the FLSA and the FMLA.

Also, the DOL provided an explanation in the opinion letter that employees who are eligible and have serious health conditions that require reduced work schedules may use their available FMLA leave for an indefinite period of time.

The provided guidance is a helpful resource for employers, as it sheds light on the DOL’s perspective on several matters, such as remuneration for telecommuting workers under the FLSA, safeguards for breastfeeding employees who work remotely, and qualifications for telecommuting personnel under the FMLA. The objective of this recent guidance appears to be a reminder to employers that remote workers are still entitled to the safeguards offered by both the FLSA and the FMLA.

New FMLA & FLSA Information Regarding Remote Work

The Field Assistance Bulletin (FAB) №2023–1 titled “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act” offers directions and clarification on remote work or telework, the application of FLSA, and FMLA eligibility.

• how to calculate hours worked for teleworking employees
• how to apply FLSA protections to teleworking employees, including reasonable break time for nursing employees
• how to apply eligibility rules under the FMLA to teleworking employees or those working away from the employer’s facility.

To provide some context, the Family and Medical Leave Act (FMLA) is applicable to employers having a workforce of 50 employees within a 75-mile radius. However, the inclusion of remote workers can pose a challenge in determining an employer’s eligibility under the FMLA.

For instance, consider a company with 75 employees, many of whom work from different locations but receive tasks from the company’s headquarters. In this case, the company would only need to have 50 of its employees meet the FMLA’s eligibility requirements for the law to apply to all employees, including those who work from home. This means that more employees may be eligible for FMLA leave than previously thought, which is an important consideration for employers with remote workers.

Nevertheless, according to the bulletin, employees working from home are entitled to FMLA leave under the same terms and conditions as employees who work on-site at any other location for the employer. This means that they must have worked for the employer for at least 12 months, completed at least 1,250 hours of service for the employer during the preceding 12-month period, and worked at a location where the employer has at least 50 employees within a 75-mile radius.

In the current landscape of employment law and remote work, ensuring compliance is becoming increasingly intricate. Our team of experts is here to offer guidance and support regarding these new changes to make sure you stay compliant with the new law!

Key Takeaways for Employers from the New DOL Guidance

To summarize, employers should be aware that employees who are covered by the FLSA and work remotely are entitled to the same protections for rest, meals, and nursing breaks as employees who work at the employer’s physical work site. Additionally, employees who telework are also eligible for job-protected leave under the FMLA in the same way as employees who work on-site.

Employers with remote workforces should review their wage and hour and FMLA policies to ensure that they accurately reflect the new guidance. Also, it’s important to keep in mind that the location of remote employees’ residences will still be relevant for determining eligibility for paid sick leave and paid family leave under state or local laws.

Furthermore, employers should ensure that their FMLA policies align with the new guidance regarding intermittent leave, which applies to all eligible employees, not just remote workers. They should also consider how their FMLA policy may apply when an employee requests a reduced schedule as an accommodation.

Originally published at https://vantagepointbenefit.com on March 21, 2023.