On February 9, 2023, the United States Department of Labor, Wage and Hour Division (“DOL”) published an Opinion Letter addressing the use of leave pursuant to the Family and Medical Leave Act (“FMLA”) by an employee with a serious health condition to create a reduced scheduled workweek for an indefinite time period.  That same day, the DOL also clarified in a Field Assistance Bulletin the application of several specific Fair Labor Standards Act (“FLSA”) provisions and FMLA eligibility requirements to remote-based employees.  Neither of these publications create new law, but each serves as a helpful reminder of some of the more precise requirements of each law.  Below is a summary of the main points of each publication.

Employees may use FMLA to Create an Indefinite Reduction in Work Schedule

The DOL’s Opinion Letter addresses a request by an employee to work no more than eight hours per day due to a serious health condition.   The employer regularly required the employee to work overtime each week, including hours in excess of eight in one day.  The employer assumed the FMLA was inapplicable in this scenario because the employee would still be working at least 40 hours per week, and therefore, presumed no FMLA was being used.  Instead, the employer sought to analyze the employee’s request solely under the Americans with Disabilities Act (“ADA”).

The DOL corrected the employer and advised that the FMLA affords employees “12 work weeks” of leave per year for certain qualifying reasons, such as an employee’s own serious health condition.  Often, this calculation will amount to 480 hours per year of FMLA leave based on a 40-hour work week (12 weeks x 40 hours = 480 hours).  However, if an employee is regularly scheduled to work more than 40 hours per week, then the employee will be entitled to more than 480 hours of FMLA leave time.    In calculating FMLA leave entitlement, the employer must use the number of hours that an employee is mandated to work by the employer, including overtime hours.  For example, an employee who is mandated to work 50 hours per week, will be entitled to 600 hours of FMLA in a 12-month period (12 weeks x 50 hours = 600 hours).

It is important to note that the DOL distinguished voluntary overtime hours from hours that an employee is required to work. Voluntary overtime hours that an employee may occasionally work will not be included in the total FMLA leave allotment.

The DOL then confirmed that an employee who requests to work a reduced schedule may continue to use FMLA until the employee has exhausted their FMLA leave entitlement.  The DOL expressly noted in the Opinion Letter that if an employee never exhausts their FMLA, then the employee “may work the reduced schedule indefinitely.”  This might happen, for example, if the employee uses only 10 hours of FMLA leave time per week, and as noted above, is eligible for 600 hours of FMLA leave in a 12-month period.

The DOL further underscored in the Opinion Letter that an employee may be entitled to protections under the FMLA simultaneously with protections under the ADA.  In other words, an employee with a serious health condition may be entitled to leave under the FMLA, and may also be entitled to a reduced schedule as a workplace accommodation under the ADA.  Per the Opinion Letter, “[i]n the case of an employee who needs leave for a serious health condition under the FMLA and is also a qualified individual with a disability under the ADA, requirements from both laws must be observed and applied in a manner that assures the most beneficial rights and protection to the employee.”

Breaks Less than 20 Minutes are Compensable, Regardless of Whether Employee is working in the Employer’s Worksite or in a Remote Location

The DOL’s Field Assistance Bulletin reminds employers that employee breaks of less than 20 minutes must be included as compensable hours worked, regardless of whether the employee works at the employer’s worksite or at some other location outside of the employer’s control. 29 C.F.R. §785.18.   The DOL noted that, regardless of where the work is performed, employees frequently take short breaks to go to the restroom, get a cup of coffee or stretch their legs.  “By their very nature, such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.” Breaks that are longer than 20 minutes may be excluded from compensable hours worked provided the employee is completely relieved from work and is able to effectively use the time for the employee’s own purposes.

Nursing Employees Working Outside the Workplace are Also Entitled to Lactation Breaks and Privacy

The DOL Bulletin also reminds employers of their obligation under the FLSA to provide a reasonable break time and private space for employees who are working in a remote location for expressing breast milk. 29 U.S.C. §218d(a).  Employees must have a place to express breast milk, which means that a remote employee is free from observation by any employer-provided or required video system, including a computer camera, security camera or web conferencing platform.  These private spaces must be provided in any working areas, including when an employee is working off-site at a client location.  Break times for nursing mothers can be unpaid as long as the employee is completely relieved from duty.  However, if the employer provides compensated breaks for other purposes, an employee who uses that break time to express milk must be compensated for the break.

FMLA Eligibility for Remote-Based Employees

Lastly, the DOL’s Bulletin addresses the meaning of “worksite” for FMLA eligibility purposes when employees work remotely.  To be eligible for FMLA leave, an employee must work at a location where the employer employs at least 50 employees within a 75 mile radius.  When an employee works from home, the employee’s personal residence is not a worksite per the FMLA regulations.  29 C.F.R. §825.111(a)(2).  Instead, the FMLA regulations provide that the employee’s worksite for FMLA eligibility purposes is the office to which the employee reports or from which the employee’s assignments are generated.  29 C.F.R. §825.111(a).  Therefore, if there are 50 employees employed within 75 miles of the location to which the employee reports or from which the employee’s assignments are generated, then the employee will satisfy this particular FMLA-eligibility requirement.  The count of employees “within 75 miles of a worksite” includes employees who telework and report to or receive assignments from that worksite.

Please do not hesitate to contact any member of McLane’s Employment Law Practice Group with questions regarding either of the DOL’s recently issued publications.