An unidentified writer asked the U.S. Department of Labor
for an opinion regarding “[w]hether a non-exempt employee’s 15-minute rest
breaks, which are certified by a health care provider as required every hour
due to the employee’s serious health condition and are thus covered under the
FMLA [Family and Medical Leave Act], are compensable or non-compensable time
under the FLSA [Fair Labor Standards Act].”
The DOL opinion noted that several nonexempt employees had
provided FMLA certifications from their health care providers stating that the
employees require 15-minute breaks every hour due to their own continuing
serious health conditions.
The DOL observed that short rest breaks up to 20 minutes in
length primarily benefit the employer, and therefore must be paid. In limited
circumstances, however, short rest breaks primarily benefit the employee and
therefore are not compensable.
The specific FMLA-protected breaks described in the writer’s
letter differ significantly from ordinary rest breaks commonly provided to
Because the FMLA-protected breaks are given to accommodate
the employee’s serious health condition, the breaks predominantly benefit the
employee and are non-compensable.
The text of the FMLA confirms that employees are not
entitled to compensation for the FMLA-protected breaks described in the letter.
Indeed, the FMLA expressly provides that FMLA-protected leave may be unpaid.
See 29 U.S.C. § 2612(c). It provides no exceptions for breaks up to 20 minutes
The DOL provided a potentially significant caveat. Employees
who take FMLA-protected breaks must receive as many compensable rest breaks as
their coworkers receive. For example, if an employer generally allows all of
its employees to take two paid 15-minute rest breaks during an 8-hour shift, an
employee needing 15-minute rest breaks every hour due to a serious health
condition should likewise receive compensation for two 15-minute rest breaks
during his or her 8-hour shift.
The opinion letter is FLSA2018-19, dated April 12, 2018.
Michael R. LiedHoward & Howard Attorneys PLLCOne Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602(309) 999-6311MLied@howardandhoward.com