After three long and challenging years, the COVID-19 pandemic is set to officially end, according to the federal government. On February 9, 2023, the Department of Health and Human Services (DHHS) issued a Fact Sheet that declared its intent to end the COVID-19 Public Health Emergency on May 11, 2023.
That same day, on February 9, 2023, the Wage and Hour Division of the United States Department of Labor (WHD) issued a Field Assistance Bulletin (FAB) on common issues related to remote work. It is important for employers to take note of FAB’s in that they are an important source of guidance in understanding the Department’s enforcement policies, even though they are not legally binding.
In this recent FAB titled “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act,” the WHD addressed common questions under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) regarding timekeeping, recordkeeping, meals and rest breaks, breast milk expression, and employee leave eligibility.
In doing so, the WHD brought to light several helpful reminders to employers:
- Employers are responsible for maintaining accurate records of employees’ hours worked, regardless of whether employees work on site or remotely, and must pay employees for all hours worked that the employer knows or has reason to believe occurred.
- Employers may satisfy their obligation to exercise reasonable diligence to acquire knowledge regarding employees’ hours worked by providing a reasonable reporting procedure for reporting any non-scheduled work time.
- Short breaks (i.e., breaks of 20 minutes or less) must be compensated: “[w]hether teleworking at home or working at the employer’s facility, employees often take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities.”
- Meal breaks (i.e., breaks of 30 minutes or more) need not be compensated; provided, however, that employees are “completely relieved from duty” and “able to effectively use the time for their own purposes.”
- Employers must provide reasonable break time and space for employees to express breast milk, even if they are working remotely on a client site or at home.
- An employee’s residence is not a “worksite” for purposes of the FMLA requirement that an eligible employee work at a worksite where 50 or more employees are employed by the employer within 75 miles; instead, the office to which employees report or from which they receive assignments is their “worksite.”
Although DHHS has announced its plan to end the COVID-19 Public Health Emergency, remote work is almost certain to continue indefinitely into the future. So it is important for employers to review, update and refine any remote working policies or practices in place to ensure legal compliance and best practices going forward.
Do not hesitate to reach out to a member of our Labor & Employment Team to help address and answer any questions or concerns you may have regarding this recent FAB or your workplace.
