U.S. Department of Labor (DOL) Wage and Hour Division Principal Deputy Administrator Jessica Looman recently provided guidance via Field Assistance Bulletin No. 2023-1 to DOL field staff on the proper application of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) to workers who telework or otherwise work away from their employer’s worksite.

Key FLSA points include:

• Short Breaks of 20 Minutes or Less: Breaks of 20 minutes or less must be counted as hours worked, and therefore must be paid.
• Meal Breaks and Off Duty Time: Bona fide meal breaks of 30 minutes or more may be unpaid. To qualify as a bona fide break, the employee must be completely relieved from duty and be able to effectively use the time for their own purposes.
• Break Time for Pumping Breast Milk and Privacy to Pump: Employers must provide reasonable, unpaid break time and private space for an employee to express breast milk for up to one year after the child’s birth. These obligations apply even if the employee works from home or other off-site locations.

Key FMLA points include:

• Employee Eligibility: Months and hours of service are counted as of the date FMLA leave would begin, while number of employees at the worksite or within a 75-mile radius is counted as of date the employee gives notice of the need for leave.
• Employee’s Worksite: The employee’s worksite is determined by the location of the office to which they report or from which their work assignments are made. The count of employees includes those who telework and also report to or receive assignments from that worksite or one within a 75-mile radius.

Employers with employees in states other than Hawaii are encouraged to also seek guidance from employer associations or attorneys familiar with the applicable states' laws. HEC members may contact their HR Consultant or call our hotline at 808-836-1511 to discuss employees teleworking in Hawaii.