November 26, 2022

Volume XII, Number 330

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November 23, 2022

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Must an Employer Pay for Frequent FMLA Breaks?

Is it compensable time when an employee takes frequent, 15-minute breaks each hour due to the employee’s serious health condition? Today, the United States Department of Labor (DOL) answered this question in a hot-off-the-press opinion letter, verifying that FMLA-covered breaks are not compensable.

In today’s opinion letter, the DOL confirmed that frequent, 15-minute breaks taken each hour and necessitated by an employee’s serious health condition is uncompensated time because the breaks are taken for the employee’s, not the employer’s benefit. The DOL noted, however, that 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 sets forth the legal principles behind the compensability of short rest breaks that primarily benefit an employer and distinguished FMLA-leave to take frequent breaks as primarily for the employee’s benefit due to his or her serious health condition. The DOL cited both the unpaid nature of FMLA leave and a case where the court found an accommodation of frequent rest breaks due to an employee’s back pain need not be paid.

In 2010, the DOL stopped issuing opinion letters in exchange for more broad-based Administrator Interpretations. Then in June 2017, the DOL announced it would reinstate issuing opinion letters and updated its website to assist employers and employees in requesting a letter. The DOL has issued 19 opinion letters since reinstating the practice, all related to the Fair Labor Standards Act (FLSA). Today’s opinion letter was also issued pursuant to the FLSA, but addresses a topic that employers struggle with when administering unpaid, intermittent FMLA – whether and how to legally reduce pay when an employee is intermittently absent.

Jackson Lewis P.C. © 2022National Law Review, Volume VIII, Number 103
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About this Author

Megan Holstein Health Management Lawyer Jackson Lewis
Principal

Megan Holstein is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. Her practice focuses on disability, leave of absence, workplace accommodations and health management issues.

Ms. Holstein advises and represents employers regarding disability, paid sick and family leave, and accommodation administration, compliance audits, policies, training, and health management issues. She has extensive experience focusing on the Family and Medical Leave Act, the Americans with Disabilities Act, and their state law...

303-876-2228
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