Publication Details

Special Alert: New Federal Guidance re: Remote Work and FMLA Intermittent Leave

Feb 10, 2023 | Related Attorneys Katherine M. McCray, Michael S. Kalt, Emily J. Fox, Lois M. Kosch | Topic: Employment

The Wage and Hour Division (WHD) of the federal Department of Labor issued new Guidance and an Opinion Letter on February 9, with information about how the WHD interprets various issues under the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). While these documents do not carry the force of law, they are an indication of how the WHD would interpret these issues in an enforcement action and may be relied upon by courts interpreting the laws. Key takeaways:

Remote Work:

  • Unpaid Breaks: Nonexempt employees working remotely – like all nonexempt employees – must be paid for short breaks of twenty minutes or less. Breaks longer than 20 minutes that permit the employee to use the time effectively for their own purposes and during which the employee is completely relieved from duty need not be paid.
  • Lactation Breaks: Employers must provide an appropriate place for an employee to pump breast milk when the employee is working off-site (such as at a client worksite). And employees must be free from observation by any employer-provided or required video system when they are expressing breast milk, even if they are working at home.
  • FMLA Eligibility: To be eligible for FMLA leave, an employee must be employed at a worksite where 50 or more employees are employed within 75 miles of the worksite. The “worksite” for remote employees is the location to which the employee reports or from which assignments are made. The count of employees within 75 miles of that worksite includes all employees who telework and report to or receive assignments from that worksite, even if their home work location is more than 75 miles away.

Intermittent FMLA Leave:

  • An eligible employee with a serious health condition may use FMLA leave to work a reduced schedule for an indefinite period as long as they do not exhaust their FMLA leave entitlement.
  • Employees are entitled to 12 workweeks of FMLA leave in a 12-month period. If an employee is regularly scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA leave per 12-month period.

If you have questions about how these new guidelines may affect your business, please contact us.

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.