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DOL Clarifies Rules for FMLA-Related Breaks

In an opinion letter issued on April 12, 2018, the U.S. Department of Labor concluded that 15-minute breaks throughout the day required by an employee’s serious health condition are not compensable—notwithstanding the general rule that breaks of 20 minutes or less are to be paid.  The agency explained the exception as follows:

[R]est breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer.  Such breaks are “common in industry,” “promote the efficiency of the employee,” and “are customarily paid for as working time.”  29 C.F.R. § 785.18.  The specific FMLA-protected breaks described in [the opinion] letter, however, differ significantly from ordinary rest breaks commonly provided to employees.  … [T]he 15-minute breaks at issue here “are required eight times per day and solely due to the needs of the employee’s serious health condition as required under the FMLA.” 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.  … [T]he FMLA itself further 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.

The DOL noted, however, that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their otherwise similarly-situated coworkers receive.

© 2019 Proskauer Rose LLP.


About this Author

Allan Bloom, Litigation Attorney, Proskauer Rose Law Firm

Allan Bloom is an experienced trial lawyer who represents management in a broad range of employment and labor law matters. He has successfully defended a number of the world’s leading financial services, investment management, technology, consumer products, telecommunications, publishing, insurance, construction, and lodging companies, as well as global law firms and cultural institutions, against claims for unpaid wages, employment discrimination, breach of contract, and wrongful discharge, both at the trial and appellate court levels.