Department of Labor Issues New Telework Guidance and EEOC Signals Changes in Enforcement

On February 9, 2023, the U.S. Department of Labor published a Field Assistance Bulletin (Bulletin) that includes guidance to DOL Wage and Hour field staff on how to apply Family and Medical Leave Act (FMLA) eligibility rules when employees telework or work away from an employer’s facility.

Pursuant to the Bulletin, employees who telework are eligible for FMLA on the same basis as any other employee. The catch is that for FMLA eligibility purposes, the teleworking employee’s personal residence is not a worksite. Rather, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made, so long as that worksite is within a 75-mile radius. This factor is important as the requirement of providing FMLA leave applies only to employers who have at least 50 employees within a 75-mile radius. Thus, along with the clarification on employee eligibility, the Bulletin directs that those telework employees within the 75-mile radius count towards the employer’s 50 employee minimum.

The Bulletin also provides guidance on calculating hours under the Fair Labor Standards Act (FLSA) for teleworking employees. FLSA regulations require that short break times of 20 minutes or less and break time for pumping breast milk be counted toward paid “hours worked,” including for teleworking employees.. For purposes of breastfeeding, the employer must provide the employee a private area, free from intrusion and shielded from view, to do so, even if that entails arranging for space at client worksite or any other worksite location. Meal time of 30 minutes or more is not counted towards “hours worked.” The full Bulletin can be found here:  FAB No. 2023-01

In addition, employers should begin preparing for upcoming changes to enforcement at the Equal Employment Opportunity Commission (EEOC). On January 10, 2023, the EEOC published a proposed strategic enforcement plan for fiscal years 2023-2027. The proposal comes following approval of a bigger budget, potential new leadership, and revised strategic priorities. If approved by the EEOC, it would modify the agency’s enforcement priorities by:

• Expanding the category of vulnerable workers to include those with intellectual and developmental disabilities, individuals with arrest or conviction records, LGBTQI+ individuals, temp workers, older workers, individuals employed in low-wage jobs, and workers with limited literacy or English proficiency.
• Recognizing employers’ increasing use of artificial intelligence (AI) and machine learning in job advertisements, recruiting and hiring.
• Focusing on discrimination associated with the COVID-19 pandemic and other threats to public health, violations of the newly enacted Pregnant Workers Fairness Act, and technology related employment discrimination.
• Focusing on overly broad nondisclosure agreements and non disparagement agreements.

Employers should be aware of this renewed focus, and take the time to ensure that policies and practices comply with EEOC regulations. The EEOC’s budget increased to $455 million in fiscal year 2023, up from $420 million in 2022. This increase will no doubt result in a more active approach in enforcement, allowing the EEOC to hire more personnel to address backlogs, as well as invest in technology and experts for more efficient litigation. Potentially overseeing this new budget and strategic focus is President Joe Biden’s EEOC chair nominee Kalpana Kotogal, a Democrat, who would replace Republican Janet Dhillon, who resigned in November 2022. The Senate has not yet confirmed Kotogal’s nomination.

For more information, the EEOC’s proposed strategic plan can be found here: EEOC 2023-2027 Proposed Strategic Plan