Learn more from our Managing Partner Irene Sinayskaya, and from Jane Lvovskiy of Supporting Strategies, about the updates to the laws to extend to remote employees on their Podcast for a Savvy Business Owner.

On February 9, 2023, the United States Department of Labor (“DOL”) issued guidance concerning employees’ rights and employers’ responsibilities under the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) for employees that work remotely.

Fair Labor Standards Act

The FLSA requires employers to pay all non-exempt employees for all hours worked, regardless of whether the employees work from the employer’s worksite or from another location. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked regardless of whether the employee works at the employer’s location or works virtually. As such, employers should establish reasonable procedures for tracking and reporting employee working hours.

Employees that receive breaks of twenty (20) minutes or less are required to be compensated for such breaks, even if during that time employees perform non-work tasks. Breaks of longer than twenty (20) minutes, such as meal breaks, are not required to be compensated for as long as employees are completely relieved from work during the break.

Employers must provide remote employees who need to express breast milk for their nursing child with lactation breaks, as required by the FLSA. Under the FLSA, when an employee is using break time at work to express breast milk, the employee: 1) must be completely relieved from duty; or 2) must be paid for the break time. Further, when employers provide paid breaks, an employee who uses such break time to pump breast milk must be compensated in the same way that other employees are compensated for break time.

In New York, lactation breaks are unpaid so long as employees are fully relieved of their duties. Employees may use their regular paid break or mealtime to pump breast milk. Lactation breaks should be of a length and frequency sufficient to meet the needs of the employee. Additionally, employers must provide employees with a compliant location to express breast milk that is “shielded from view.”  With respect to remote employees, this means that not only must the physical space be compliant, but that the employee be free from view or observation by any employer-required cameras, including computer cameras, security cameras, or web/video conferencing cameras.

Family and Medical Leave Act

The FMLA requires eligible employers to provide their employees with up to twelve (12) weeks per year of unpaid leave when an employee has or adopts a child, to care for themselves or another in the event of a serious medical illness, and to deal with hardships associated with members of one’s family being deployed in the military.  Employees are eligible for FMLA leave when they have worked for the employer for at least twelve (12) months, have at least 1,250 hours of service for the employer during the twelve (12)-month period immediately preceding the leave, and work at a location where the employer has at least fifty (50) employees within seventy-five (75) miles of their offices or worksites. When employees work remotely, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made, regardless of where the employees are physically located.

Ultimately, employees can have flexibility with remote working environments while covered by the FLSA and FMLA protections. The FLSA protections apply equally regardless of whether the employee teleworks or works at the employer’s worksite.

Sinayskaya Yuniver, P.C. will release updates as they become available. If you have any questions about the FLSA and FMLA protections, please do not hesitate to contact our office.