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February 2023: Department of Labor Issues New Guidance on Telework Under the Fair Labor Standards Act and Family and Medical Leave Act

21 Feb


Update Applicable to:
All employers with teleworking employees and employees who are nursing.

What happened?
On February 9, 2023, the United States Department of Labor’s Wage and Hour Division (WHD) recently issued Field Assistance Bulletin (FAB) No. 2023-1 to address breaks for employees who telework under the Fair Labor Standards Act (“FLSA”), and application of the Family and Medical Leave Act (“FMLA”) to teleworking employees.

What are the details?
The FLSA requires covered employers to pay nonexempt employees for all hours worked, including work performed at home or outside the employer’s premises or job site. 29 C.F.R. § 785.11-.12. Regarding breaks taken during the workday, the FLSA’s general principle that short breaks of twenty minutes or less are generally counted as compensable hours worked. 29 C.F.R. § 785.18. The WHD’s latest guidance explains that this principle applies regardless of an employee’s location.

Similarly, the FLSA’s protections for breastfeeding employees apply to covered employees who telework. Under the FLSA, employers must provide covered employees “reasonable break time” to express breast milk for one year after the birth of the employee’s child. 29 U.S.C. § 218d(a). Employers are not required to compensate nursing employees for breaks taken to express milk under the FLSA unless the employer provides compensated breaks to all employees as a matter of course (although compensation may be required under applicable state law). But if an employee is not completely relieved from duty during these breaks, the time must be compensated as work time, just like any other breaks where the employee is not completely relieved of duty. 29 U.S.C. § 218d(b). For example, a remote employee who attends a video meeting or conference call while pumping – even if off camera – is generally not relieved from duty and must be paid for that time.

For FMLA eligibility purposes, an employee must be employed at a worksite where the employer employs 50 or more employees within 75 miles of that worksite. Under the FMLA, an employee’s residence is not a worksite. 29 C.F.R. § 825.111(a)(2). The WHD’s FAB No. 2023-1 explains that when employees work from home or other remote locations, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.

WHD also recently issued opinion letter FMLA 2023-1-A, which explains that an eligible employee may use available FMLA leave to limit their workday when they have a serious health condition requiring a reduced work schedule indefinitely.

For more information, please see the links below:

Field Assistance Bulletin (FAB) No. 2023-1

Opinion Letter FMLA 2023-1-A

Article 1Article 2

What do employers need to do?
Employers should review the links and their leave policies, lactation accommodations policies, and wage policies to ensure they comply with local or state law.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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