U.S. Department of Labor Releases Guidance on Telework and FMLA

February 16, 2023

On Feb. 9, 2023, just days following the 30th anniversary of the enactment of the Family and Medical Leave Act (FMLA), the U.S. Department of Labor’s Wage and Hour Division, the subagency tasked with administration and enforcement of the statute, issued two new guidance documents, including the first opinion letter issued by the Wage and Hour Division under this administration. The new guidance interprets the requirements of the FMLA and how they interact with other federal labor and employment laws.

Field Assistance Bulletin No. 2023-1, directed at Wage and Hour Division field staff, addresses telework scenarios under the Fair Labor Standards Act (FLSA) and the FMLA. Specifically, the field assistance bulletin confirms that FLSA and FMLA requirements apply whether work is performed at a remote location or at a designated work site.

  • At-Home Breaks and Hours Worked: Under the FLSA, breaks of 20 minutes or less are considered part of hours worked, even when the break is taken at the teleworking employee’s home. In contrast, “bona fide” lunch breaks or breaks lasting 30 minutes or more are not compensable, so long as the employee is completely relieved from duty during the break.
  • Breaks for Nursing Employees: Protections for nursing employees (as amended by the Consolidated Appropriations Act, 2023), apply equally in remote telework settings. Employers must ensure nursing employees have access to reasonable break time to express breast milk, and a place that is shielded from view and free from intrusion from coworkers and the public, even when that employee is working at home. The guidance also addresses when such breaks may or may not be compensable.
  • FMLA Coverage Determinations: FMLA coverage rules apply whether an employee reports to a designated work site or teleworks from a remote location. For teleworkers, the employees’ work site for purposes of determining FMLA coverage is the office to which they report or from which their assignments are made.

The new opinion letter addresses whether, assuming FMLA coverage and eligibility, an employee who normally works in excess of eight hours a day but becomes unable to do so due to a chronic serious health condition is entitled to indefinite intermittent leave under the FMLA. The guidance explains that an employee with a health condition that necessitates limited hours could use FMLA leave to work a reduced schedule indefinitely, until his or her FMLA leave is exhausted.

In addition, the guidance clarifies that employee rights under the FMLA are distinct and separate from those under the Americans with Disabilities Act (ADA), and the requirements of each statute must be analyzed separately. Leave provided as a reasonable accommodation under the ADA, however, also may qualify as FMLA-protected leave. While employers and employees alike find opinion letters helpful, this is the first opinion letter issued under the Biden administration, which has been reluctant to use the Wage and Hour Division’s opinion letter program.

For questions related to compliance with wage and hour laws, contact one of the authors or another member of the McGuireWoods labor and employment practice group.