Compensation for FMLA Breaks

Posted by BAS - 21 June, 2018


The Department of Labor issued an Opinion Letter on whether 15-minute rest breaks required by an employee’s serious health condition under the FMLA should be paid or unpaid. While an Opinion Letter applies only to the individual seeking the letter, all employers can get a glimpse into the DOL’s stance on the issue at hand.

The employer asking for guidance in Opinion Letter FLSA 2018-19 had nonexempt employees with FMLA certifications from their health care providers that they required 15 minute breaks every hour due to a serious health condition. If the breaks are granted, in an 8-hour shift, the employees will perform only 6 hours of work.

In general, the Fair Labor Standards Act (FLSA) requires employers to compensate employees for their work. The FLSA does not, however, define what work is compensable work. The U.S. Supreme Court has held that whether an employee should be paid for his time depends on if the time is spent predominately for the employer’s benefit or for the employee’s benefit.

Short rest breaks have typically been considered taken for the benefit of the employer, because they give the company a reenergized employee. Sometimes, short rest breaks primarily benefit the employee and therefore are not compensable. In the situation addressed in the opinion letter, the breaks were specific FMLA-protected breaks which differed from ordinary rest breaks provided to other employees. The breaks were given to accommodate the employee’s serious health condition and did not have to be paid.

The Supreme Court noted that employees who take frequent FMLA-protected unpaid breaks do have to receive as many paid breaks as their coworkers receive (as a part of or in addition to the FMLA-protected breaks).

Topics: HR & Benefits Compliance

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