Employees not entitled to compensation for FMLA-protected breaks, DOL opinion letter says

The Department of Labor has published an opinion letter addressing compensation for 15-minute rest breaks required by an employee’s serious health condition. The letter responded to a request for an opinion as to “[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, are compensable or non-compensable time under the FLSA.”
Rest breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer, according to the opinion letter. However, the specific FMLA-protected breaks described in the inquiry differ significantly from ordinary rest breaks commonly provided to employees. Here, the 15-minute breaks “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 these FMLA-protected breaks are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are non-compensable, the letter states. This conclusion comports with both regulations and case law. Moreover, the text of the FMLA itself further confirms that employees are not entitled to compensation for the FMLA-protected breaks at issue. The FMLA expressly provides that FMLA-protected leave may be unpaid, and it provides no exceptions for breaks up to 20 minutes in length.
That said, the letter goes on to stress that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. Thus, 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 be compensated for two 15-minute rest breaks during his or her 8-hour shift.

SOURCE: FLSA2018-19, April 12, 2018.
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