DOL Releases FMLA Guidance on Electronic Distribution

On December 29, 2020, the DOL’s Wage and Hour Division released Field Assistance Bulletin No. 2020-7, which provides guidance to agency field staff on posting requirements under FMLA, the Fair Labor Standards Act, the Employee Polygraph Protection Act and the Service Contract Act. The bulletin was issued in response to the many questions the division had received about electronic posting requirements, considering that many workers are performing duties remotely during the COVID-19 pandemic.

As background, many notices relevant to these laws must be posted physically at a worksite. If an employer wanted to distribute the notice exclusively by electronic means, all of the following conditions must be met:

• All of the employer’s employees exclusively work remotely.
• All employees customarily receive information from the employer via electronic means.
• All employees have readily available access to the electronic posting at all times.

Some notices may be distributed electronically to each employee if the following conditions are all met:

• The employees have electronic access as part of their essential duties.
• The employees customarily receive information from the employer electronically.
• The employer has taken steps to inform employees of where and how to access the notice electronically.

Under FMLA, the general notice must be posted in a conspicuous place on the worksite where it is visible to both employees and applicants. If all hiring and work is being done remotely due to COVID-19, then the posting requirement would be met by the employer posting the notice on a website. However, remember that the notice must be accessible by applicants as well. Thus, if an employer posts on the intranet and the intranet is not accessible to applicants, the employer should consider posting on an external website or placing an additional posting on the applicant portal.

Employers should be aware of this guidance. For guidance related to the other laws, please see the bulletin.

Field Assistance Bulletin 2020-7 »