Leave and Break Considerations for Remote Workers

In light of recent guidance from the U.S. Department of Labor (“DOL”) related to managing remote workers in compliance with federal law, AGG Employment attorneys Megan Mitchell and Lindsey Locke authored an article offering insight for employers on leave and break considerations for remote employees, which was published by HR.com’s HRIS & Payroll Excellence on October 30, 2023.

“As every employer knows, remote work is here to stay,” Megan and Lindsey said. “But while employers and managers navigate the unique challenges associated with their workplaces, they should be mindful of recent guidance issued by the U.S. Department of Labor (“DOL”), which sets out the factors that employers should consider in both (a) deciding whether to allow employees to work remotely; and (b) ensuring that they have the necessary policies in place for those employees who do work remotely. The DOL has made clear that employers should not discriminate between on-site and remote employees, even if unintentionally.”

Specifically, the article details DOL guidance related to leave and wage payment laws, including the Family and Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”), along with new requirements under the Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act.

Under the FLSA, remote work flexibility introduces new challenges related to paying employees for breaks. Generally, employers are not required to pay non-exempt employees for bona fide breaks longer than 30-minutes under certain conditions and where the employee is completely relieved from duty, which can be more difficult to monitor for remote employees. For example, an employee on break who is interrupted by phone calls from work or responding to emails must be paid for that time. To help avoid these types of issues, employers should clearly communicate expectations for breaks taken by remote employees to better ensure that employees and supervisors are aware when someone is on break and should not be disturbed.

Similarly, the PUMP Act’s requirements for employers to provide a place (other than a bathroom) for employees to express breast milk up to one year after the child’s birth presents specific concerns for remote employees, who may be subject to video monitoring through video conferencing systems. Employers should carefully consider how to monitor and enforce break time laws in compliance with the FLSA and state wage and hour laws to mitigate risk.

Finally, the DOL clarified the analysis for remote workers’ eligibility for leave under the FMLA in light of complications that remote workforces present to one aspect of FMLA eligibility for employees that “work at a location where the employer has at least 50 employees within 75 miles.” New DOL guidance suggests that when an employee works remotely, “their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made,” and if an employer has at least 49 other employees within 75 miles of the employee’s worksite, the location prong of the FMLA eligibility test would be satisfied. “This count would include other employees who work remotely and either report to or receive assignments from the same location, even if they are not physically located there,” Megan and Lindsey explain.

To read the full article, please click here.