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Michael Haberman
  May 28, 2018

Do you have to give compensated breaks under the FMLA?


In a recent opinion letter administered by the U.S. Department of Labor, the determination was made that 15-minute rest breaks necessitated by an employee’s medical condition were NOT compensable, at least not all of them. Here is the situation.

FMLA covered

An employee, covered by the Family and Medical Leave Act, had a personal medical condition that they rest 15 minutes of every hour worked. In an eight hour work day that meant that the employee received eight breaks. Normally under the Fair Labor Standards Act, any break that is given that is 20 minutes or less must be compensated for by the employer. Accustomed practice throughout business and industry, is one 15 minute break per four hours worked. Just to be clear, the FLSA does not require that breaks be given, but it is considered to be to the benefit of the employer to provide breaks in order to keep employees more efficient and productive. In this particular case, however, the breaks were required for the medical condition of the employee. The employer who asked for the opinion letter from the USDOL wanted to know if these breaks had to be paid for under the standard in the FLSA.

No, but…

In the opinion letter the administrator said:

Because the FMLA-protected breaks described in your letter are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are noncompensable.2 The breaks described in your letter resemble the frequent “accommodation breaks” at issue in Spiteri, which the court held primarily benefitted the employee and thus were not compensable.

However, the letter goes on to point out that:

It is important to note, however, that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. See 29 C.F.R. § 825.220(c). 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.

Therefore, six of the breaks would be noncompensable, but two would be, on the same schedule other employees received breaks. You will recall that under the FMLA that time is provided for on an unpaid basis. While generally FMLA time is taken in larger increments, obviously some situations require increments as small as 15 minutes. That does not change the nature of whether it is paid or not paid until you cross the line with the FLSA.

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