Flexible Workplace: What It Means for Employers

What it means in practice

What a flexible workplace means. Workplace flexibility is about where work happens. Flexibility about when it happens is flextime, and fitting the week into fewer days is the 4-day work week. A legal definition comes from federal civil service law: telework is "a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee's position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work" (5 U.S.C. 6501(3)). OPM distinguishes telework, where employees have regularly scheduled days at both the telework site and the agency worksite, from remote work, where the employee is not expected to work at an agency worksite on a regular and recurring basis. A hybrid arrangement mixes the two, which BLS captures by counting people who teleworked for some but not all of their hours. Hoteling is a space practice: a 2018 GAO report describes desk-sharing and hoteling as situations in which mobile employees have no permanent workstation and use unassigned workspaces when in the office, and federal property law lists telecommuting, hoteling and virtual offices among "alternative workplace arrangements" (40 U.S.C. 587(c)).

What the data show. The Current Population Survey has asked about telework since October 2022 and counts people who "teleworked or worked at home for pay at any time during the survey reference week." In BLS table A-41 for September 2026 (not seasonally adjusted), 34.7 million of 158.5 million people at work teleworked, a rate of 21.9 percent; the rate was 23.9 percent for women and 20.1 percent for men. The 2025 annual averages show a 22.4 percent rate overall, 23.8 percent for full-time and 15.6 percent for part-time workers, 21.6 percent in private industry and 16.6 percent in government. By occupation the rate ranged from 43.8 percent in management, business and financial operations to 1.9 percent in transportation and material moving. BLS notes that October 2025 data were not collected because of the federal government shutdown, so 2025 figures are 11-month averages. The American Time Use Survey for 2025 found that 35 percent of employed people did some or all of their work at home on days they worked, including 38 percent of employed women and 31 percent of men, and 51 percent of workers with a bachelor's degree or higher compared with 19 percent of those with only a high school diploma. People who worked at home spent an average of 5.10 hours doing so on days they worked (ATUS Table 6).

Hours worked at home. Under the Fair Labor Standards Act, work not requested but "suffered or permitted" is work time (29 CFR 785.11), and the rule applies to work performed away from the premises or job site, "or even at home": if the employer knows or has reason to believe the work is being performed, the time counts as hours worked (29 CFR 785.12). Management must use its control to stop work it does not want, because a rule against it is not enough (29 CFR 785.13). DOL Field Assistance Bulletin (FAB) 2023-1 adds that an employer can meet its duty to learn about unscheduled hours by providing a reasonable reporting procedure for non-scheduled time and then paying for all reported hours, even hours it did not request. See hours worked for the wider rules.

Breaks while teleworking. Rest periods of about 5 to 20 minutes must be counted as hours worked (29 CFR 785.18). FAB 2023-1 says that applies whether the employee works from home, the employer's worksite or another location the employer does not control. Bona fide meal periods, ordinarily 30 minutes or more, are not work time if the employee is completely relieved from duty (29 CFR 785.19), and longer off-duty periods are not hours worked if the employee is told in advance, or may freely choose, when work resumes and can use the time for personal purposes (29 CFR 785.16). In the FAB's examples, a 30-minute lunch frequently interrupted by work calls is hours worked, while a teleworker who works 9:00 a.m. to 4:00 p.m., is free from 4:00 to 7:00 p.m., and works 7:00 to 8:00 p.m. is not working during the three-hour gap.

Example 1: interrupted lunches. As our own illustration, a nonexempt teleworker paid $20 an hour logs on at 9:00 a.m. and off at 5:30 p.m. five days a week, with a 30-minute lunch. If each lunch is uninterrupted, the week is 40 hours and pay is $800 (40 x $20). If work calls frequently interrupt every lunch, the 30 minutes count each day, the week is 42.5 hours, and pay is 40 x $20 plus 2.5 overtime hours x $30, or $875.

Is FAB 2023-1 still current? As of October 27, 2026, the Wage and Hour Division's Field Assistance Bulletins page lists FAB 2023-1, "Telework Under the FLSA and Family and Medical Leave Act" (February 9, 2023), and does not mark it withdrawn.

Nursing employees working remotely. The FLSA, as expanded by the PUMP for Nursing Mothers Act (December 29, 2022), requires reasonable break time to express breast milk for 1 year after a child's birth and a place, other than a bathroom, shielded from view and free from intrusion (29 U.S.C. 218d(a)). FAB 2023-1 says these protections apply when the employee teleworks from home or another location, and that the employer must ensure the employee is free from observation by any employer-provided or required video system, including a computer camera. Break time need not be paid unless other law requires it, but it is hours worked if the employee is not completely relieved from duty (29 U.S.C. 218d(b)); the FAB says a remote employee who attends a video meeting or call during the break, even off camera, generally must be paid. Employers with fewer than 50 employees are exempt only if compliance would impose an undue hardship (29 U.S.C. 218d(c)).

FMLA eligibility for remote employees. To be eligible under the FMLA, an employee must work where the employer has at least 50 employees within 75 miles. FAB 2023-1 states that an employee's personal residence is not a worksite; a teleworker's worksite is the office they report to or receive assignments from, and teleworkers who report to that office are counted there. In the FAB's example, a data processor who lives more than 75 miles from headquarters but gets assignments from a manager there is treated as employed at headquarters, which has 300 employees within 75 miles, so she meets the 50-employee test.

Telework as a disability accommodation. The ADA applies to employers with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding year (29 CFR 1630.2(e)). The EEOC's guidance Work At Home/Telework as a Reasonable Accommodation (issued February 3, 2003) says the ADA does not require an employer to offer telework to all employees, but an employer that offers it must give employees with disabilities an equal opportunity to participate, and changing the location of work may be a reasonable accommodation even where others may not telework. Feasibility turns on factors such as the employer's ability to supervise, equipment that cannot be replicated at home, the need for face-to-face interaction, and immediate access to documents kept only at the workplace. A request should not be denied solely because the job involves some contact with coworkers. The employer may choose any effective accommodation, and telework may be limited to what the disability requires, such as one day a week. See the Americans with Disabilities Act (ADA) and accessibility entries.

Safety and injury records at home. OSHA's recordkeeping rule treats an injury or illness in a home office as work-related if it occurs while the employee is performing work for pay in the home and is directly related to the work rather than the general home environment. The regulation's examples: dropping a box of work documents on a foot is work-related; tripping on the family dog while rushing to a work call, or electrocution from faulty home wiring, is not (29 CFR 1904.5(b)(7)). On February 25, 2000, OSHA issued directive CPL 2-0.125, Home-Based Worksites, to guide compliance staff on inspection policies for worksites in an employee's home; the DOL Inspector General reported that OSHA had historically not targeted home workplaces, noting only three home inspections, all involving lead exposure. See OSHA.

Federal agencies: the Telework Enhancement Act and 2025 changes. The Telework Enhancement Act of 2010 (Pub. L. 111-292, December 9, 2010) requires each executive agency to set a telework policy, determine eligibility and notify employees (5 U.S.C. 6502(a)). Telework requires a written agreement between manager and employee, and employees disciplined for more than 5 days of unauthorized absence in a calendar year may not telework (5 U.S.C. 6502). Agencies must treat teleworkers and non-teleworkers the same for appraisals, promotions and other personnel actions (5 U.S.C. 6503). On January 20, 2025, the presidential memorandum Return to In-Person Work directed agency heads to terminate remote work arrangements and require full-time in-person work "as soon as practicable," with exemptions they deem necessary and consistent with applicable law. OPM guidance of January 22, 2025, issued under the Act, told agencies to require full-time work at duty stations unless an employee is excused for a disability, qualifying medical condition or other compelling reason, and to move duty stations more than 50 miles from any agency office to an appropriate office. OPM's March 20, 2025 FAQs say situational telework still requires a written agreement and should be intermittent. The OPM telework page says telework guidance inconsistent with the memorandum is rescinded. These rules govern federal agencies, not private employers.

Where states differ: California (example). The California Labor Commissioner says an employee is entitled to reimbursement for all expenses or losses incurred in direct consequence of the discharge of work duties (Labor Code 2802); see California labor laws. For payroll taxes, the starting point is where services are performed. The EDD says an employer must register within 15 days of paying more than $100 in wages in a calendar quarter. For an employee working in California and other states, its Multistate Employment information sheet (DE 231D) applies four tests, in order, to decide which state covers unemployment and disability insurance taxes: localization, base of operations, place of direction and control, and the employee's residence; the employee must perform some services in California first. California income tax withholding is separate: wages a nonresident earns in California are subject to withholding, allocated by working days. The Department of Labor lists other state labor offices.

Example 2: a hybrid nonresident. As our own illustration of the EDD allocation rule, a Nevada resident who earns $4,000 in a pay period with 10 working days, and works 3 of them at the employer's California office and 7 from home in Nevada, has 3/10 of earnings, or $1,200, subject to California income tax withholding.

FAQ: Does a private employer have to pay for a teleworker's internet? State law may require reimbursement, as California's Labor Code 2802 does for necessary work expenses. For federal agencies, OPM says an agency that requires an employee to buy an internet connection for situational telework is responsible for the cost.

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