FMLA may supersede rules on breaktimes


What happens when an employee asks to take repeated, short breaks each workday for a health condition?


Should you be making sure that person gets paid – or does the Family and Medical Leave Act (FMLA) supersede the rules on breaktimes?


The Dept. of Labor (DOL) addressed this issue in a recent opinion letter.


15 minutes every hour


Per the letter, a company had a group of nonexempt workers who, as recommended by a doctor, needed 15-minute rest breaks every hour to perform their duties (which added up to two hours over an eight-hour shift).


The breaks met the requirements for leave under the FMLA.


But since they happened during the workday, the employer wanted to know if they would be considered compensable time under the Fair Labor Standards Act.


Ordinarily, the DOL said in the letter, short rest breaks to 20 minutes or primarily benefit the employer because they make employees refreshed and ready to work. So companies must pay them for this time.


However, that wasn’t the case in this situation. The frequent short rest breaks were mostly for the workers’ benefit and were FMLA-protected.


Because FMLA leave doesn’t have to be paid, even if it only lasts a few hours (or minutes) a day, the company wasn’t obligated to pay workers for the rest breaks they needed to take each hour.


Important exceptions


The DOL did make an important distinction: Employees who take FMLA-protected breaks throughout the day must still receive the dame number of compensable rest breaks their co-workers get.


Example: If a company gives all workers two paid 15-minute breaks each day, an employee who needs to take a break every hour due to an FMLA-qualifying condition must be paid for those two breaks. The others can be unpaid.


In addition, employees who have access to paid time off are allowed to use that paid time for their breaks first before taking unpaid FMLA breaks to help them deal with their medical condition.