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April 23, 2018

DOL Issues Guidance on Compensability of Medically Necessary Non-Exempt Employee Breaks

On April 12, 2018, the U.S. Department of Labor’s (DOL’s) Wage and Hour Division issued opinion letter FLSA2018-19 addressing whether a non-exempt employee’s 15-minute rest breaks taken every hour for the employee’s own serious health condition under an approved Family and Medical Leave Act (FMLA) leave must be paid under the Fair Labor Standards Act (FLSA).

The DOL states that brief rest breaks of up to 20 minutes are “ordinarily compensable,” given that such breaks are thought to re-energize the employee and therefore benefit the employer as decided in Sec’y of Labor v. Am. Future Sys. Inc. and Naylor v. Securiguard. On the other hand, the DOL explains that breaks which “primarily benefit the employee” (for instance, breaks provided as a workplace accommodation) need not be compensated, citing Spiteri v. AT&T Holdings, Inc.

Opinion letter FLSA2018-19 explains that the hourly 15-minute breaks presented in the fact pattern “predominantly benefit the employee and are noncompensable.” The DOL stated that this is in harmony with the FMLA, which provides that protected leave may be unpaid (even if brief in duration). However, the opinion letter further explains that employees who take FMLA-protected breaks must receive as many compensable rest breaks as co-workers who are not taking FMLA leave. For example, if a particular employee took eight FMLA-protected breaks of 15 minutes each throughout the workday, and the employer generally allows all employees two paid 15-minute breaks per shift, the employee would receive compensation for two of the eight rest breaks.

Although the opinion letter speaks only to breaks given by right under the FMLA, the same principles would seem to apply to “extra” breaks granted as a form of reasonable accommodation under the Americans with Disabilities Act (ADA). The same would also seem to be true for “extra” lactation breaks unless those are required to be paid under any applicable state or local law.

Employers who choose to treat breaks provided under the FMLA or ADA, or for purposes of lactation, as unpaid should ensure that accurate timekeeping systems are in place. It is important to be able to show that any unpaid break time was in fact time not worked, and that any rounding rules are applied evenhandedly so that they do not always work to the employee’s disadvantage.

As a closing note, the DOL’s release of new opinion letters – in and of itself – is a noteworthy development for employers. The DOL has reinstituted its longstanding practice of issuing opinion letters to assist with legal compliance and provide guidance under a specific set of facts. Prior to 2018, the DOL had not issued opinion letters since approximately 2009. Employers should continue to watch for the release of new opinion letters by the DOL.

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