Labor & Employment Law I MAY 23, 2018

Short FMLA-Based Breaks May Not Be Compensable

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 employees.

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 in length.

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.