Breaks, FMLA and nursing moms: Getting it all right with teleworkers

Breaks, the Family and Medical Leave Act (FMLA) and nursing moms — new guidance from the federal Department of Labor (DOL) helps employers make sure they are applying the rules correctly to teleworkers.

In a Field Assistance Bulletin, the DOL addresses three important topics regarding teleworkers:

• Paying teleworkers properly, particularly with regard to break time
• Following rules that apply to nursing mothers, and
• How to apply the FMLA.

The bulletin begins with the obvious: Employers must pay their employees for all hours worked.

The tricky sub-phrase within that statement: “hours worked.” As the DOL explains, “hours worked” are not limited only to time spent on “active productive labor.” Sometimes, a determination must be made as to whether a particular time period constitutes working time and thus is compensable under the law.

And employee break time throws a bit of a monkey wrench into the mix.

Why is break time paid?

Under a long-standing applicable regulation, breaks of 20 minutes or less are generally counted as compensable time worked. The rationale behind that rule? Here’s how the DOL puts it: “By their very nature, such short breaks primarily benefit the employer by reducing employer fatigue and helping employees maintain focus and be more productive at work.”

The 20-minute break rule applies with equal force to teleworkers, the DOL advises.

On the other hand, and also consistent with long-standing authority, legitimate meal breaks (which the DOL puts at typically 30 minutes or more) are not payable time. The big caveat here for employers: If the employee is not completely relieved of work duties during this time, they must be paid for it.

The bulletin gives the classic example of an employee who is frequently interrupted during a 30-minute lunch period by multiple work phone calls that last several minutes each. That time is clearly compensable, it advises.

Like the break rule, the meal rule is equally applicable to teleworkers, the bulletin explains.

Whether an employee teleworks or reports to a work site, the key question is always whether they are completely relieved of their job duties. To illustrate the application of this rule to teleworkers, the bulletin provides the example of a teleworker who takes an hour break in the morning to get their children ready for school and the example of a teleworker who takes a three-hour break during their shift before returning to complete it. In both of those cases, the time is not paid as long as the employee is completely relieved of all job duties, it says.

Breaks and nursing mothers

Under the Fair Labor Standards Act (FLSA), employers must give their employees reasonable break time to express breast milk for one year after the child’s birth. For onsite employees, they must provide a private place (other than a bathroom) that is free from intrusion by others. The location must also be shielded from view, which means it is a terrible idea to relegate a nursing mother to a room with a video system such as a security camera or web conferencing platform.

The requirement to provide a place to express breast milk applies if a nursing mother is working at an off-site location, the bulletin says.

This time need not be paid under the FLSA, although state laws may vary, the bulletin adds. A caveat here: If an employer provides paid breaks and a nursing mother uses that time to express breast milk, the time must be paid.

These rules apply to teleworkers as well as onsite employees.

Pop quiz: A teleworking nursing mother participates in a work conference call while expressing breast milk. Does she get paid for that time?

Remember the key question: Is she completely relieved of job duties? Obviously not — so that time must be paid.

Teleworkers and the FMLA

The general eligibility requirements for FMLA leave are:

• The employee has worked for the employer for at least a year.
• The employee has worked at least 1,250 hours in the year right before the leave.
• The employee works where the employer has at least 50 employees within 75 miles.

So how does that last eligibility requirement apply to remote employees?

An employee’s personal residence is not a work site, the bulletin explains. When an employee works from home or otherwise teleworks, it says, their work site for purposes of the FMLA is where they report for their work assignments – or the physical place that assigns their work.

If there are at least 50 workers within 75 miles of the employer’s worksite when all workers are counted, the remote employee is eligible.

A final word of caution: An employee may be eligible for FMLA leave even if they telework more than 75 miles away. Why? Because the question is whether the employer has at least 50 workers within 75 miles. That can be any 50. If that threshold is met, all workers who meet the remaining requirements are FMLA eligible.

What is a Field Assistance Bulletin?

Field Assistance Bulletins are documents issued periodically by the DOL’s Wage and Hour Division. These documents provide DOL staffers with guidance with regard to the government’s enforcement positions on federal wage and hour laws. They are a valuable compliance tool for employers because they spell out what is – and what is not – required under the law in the DOL’s view.