The Department of Labor’s Wage and Hour Division issued an opinion letter last week addressing whether an employer must pay a non-exempt employee for fifteen-minute rest breaks required by the employee’s serious health condition.  The opinion letter provided a response to situations in which non-exempt employees provide FMLA certifications requiring fifteen-minute breaks every hour in relation to their condition. 

The DOL presumed that the employee break requests would be for FMLA-qualifying leave time.  The agency also explained that FMLA provides eligible employees with up to 12 workweeks of unpaid job-protected leave each year for qualifying reasons, and that this time may be taken in periods of weeks, days, hours or even less than an hour.  See 29 C.F.R. § 825.205.

Noting that “the compensability of an employee’s time depends on whether it is spent predominantly for the employer’s benefit or for the employee’s,” the DOL cited authority establishing that rest breaks of 20 minutes or less are predominantly for the employer’s benefit in most cases. 

Where an employee seeks additional rest breaks beyond what the employer usually offers for personal reasons, however, such breaks may be predominantly for the employee’s benefit.  For example, where an employee with a back condition asks for additional 15-minute breaks as an accommodation for that condition, the provision of such “accommodation breaks” would be for the employee’s benefit.  Likewise, where an employee requests additional breaks for another FMLA-qualifying reason, those breaks would be unpaid because they are not predominantly for the employer’s benefit. 

In such cases, the employer would be required to provide the same number of paid breaks as it provides to other non-exempt employees and can forego compensating the employee for any additional breaks requested in relation to a FMLA-qualifying health condition.