The Wage and Hour Division of the U.S. Department of Labor (DOL) has been busy this month.

On February 9, the DOL issued an Opinion Letter discussing mandatory overtime and the FMLA. Marti Cardi discusses this in detail in a prior blog: DOL Confirms: Employees Can Avoid Mandatory Overtime Indefinitely by Using an FMLA Reduced Schedule.

Check out our prior blogs discussing the protections for working mothers under the recently enacted, Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP).

On the same day, the DOL issued a Field Assistance Bulletin (FAB) No. 2023-1 entitled Telework Under the Fair Labor Standards Act and Family and Medical Leave Act. This FAB addresses, in pertinent part, 1) lactation and teleworking; and 2) application of Family and Medical Leave Act (FMLA) eligibility requirements with remote workers. Each of these are summarized below.

Telework and Lactation

Employers covered by the Fair Labor Standards Act (FLSA) (that's almost every employer) must allow lactation breaks for employees and provide a private lactation space that is not a bathroom. The recent FAB emphasizes that this rule applies wherever the employee performs work, including the employee's home.

That means lactation space and break requirements apply when an employee is required to use a work-related video system such as a computer camera, security camera or web conference platform (i.e., Teams, Zoom, etc.) Further, the DOL emphasizes that if a remote employee chooses to attend a video meeting or conference call off camera, the employee is not considered relieved from duty, and must be compensated for that time.

Telework and the FMLA

Next, the FAB discusses employee eligibility under the FMLA, and the FMLA's definition of "worksite" as applicable to teleworkers.

As you know, employees are eligible to take FMLA if they have worked for their employer for at least 12 months and have at least 1,250 hours of service in the 12 months preceding the leave. To meet the 1,250-hour requirement, all hours an employee works are counted regardless of whether the work is performed at home, a worksite or elsewhere. The FAB reminds employers to keep accurate records because the employer has the burden of demonstrating an employee has not met the hours of service requirement to be eligible for the FMLA.

Next, the FAB provides additional clarification for teleworkers and FMLA eligibility under what is often referred to as the 50/75 rule (i.e., an employee must be employed at a worksite that has 50 or more employees who work within 75 miles of that worksite).

But, under the FMLA regulations, an employee's personal residence is not considered a "worksite." Rather, the worksite is the office in which the employee reports into or receives assignments. This can get tricky when a company has multiple teleworkers or a fully remote workforce.

The FAB does provide a couple of helpful examples, though. Here is one:

Employee B 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 Employee B's department telework from different cities and states. All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters. Employee B'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 Employee B'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, the employee 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.

The FAB does not address, however, what an employer with no headquarters or any type of corporate office should do, which is becoming more common.

Pings for employers:

With the amount of remote workers increasing, we expect to see future guidance from either the DOL or through court opinions. Meanwhile, employers should:

Check the company lactation policy and make sure it applies not only to onsite but also remote workers.
Update teleworker policies and agreements to ensure compliance with this recent FAB.
When counting the FMLA hours worked requirement, remember that all hours worked are counted, regardless of where the work is performed. Make sure your employees are aware of this requirement so that they are properly counting their time. Although you can require employees to track and report their time worked, ultimately it is the employer who is responsible for providing accurate time records to prove compliance with the FLSA and FMLA.
If you are inclined to deny an employee FMLA on the basis of the 50/75 rule, confer with your attorney. This is a developing area of the law that requires a fact specific analysis.

Matrix Can Help!

Matrix offers integrated leave management services including FMLA leaves and accommodation solutions. For more information, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.