new dol opinion letter FMLA covered rest breaks

Take a Break and a Deep Breath – DOL Clarifies FMLA Covered Rest Breaks

Julie R. Pugh & Lee P. Geiger 

When I received the announcement that the DOL released – not just one but THREE – long-awaited, brand spanking new Opinion Letters, I held my breath. Giddy with excitement (because I’m a huge nerd), I clicked on the one that hinted at an FMLA and FLSA intersection. The DOL was going to address two of my favorite laws in the SAME document. My heart be still!

And then … with a deep, gratified sigh, I read (and then reread) the DOL’s straightforward interpretation. While not novel, the Opinion Letter, FLSA 2018-19, was chock full of important information regarding FMLA covered rest breaks. It definitively says that an employer does not have to pay an employee who takes eight or more 15 minute breaks in a day for those breaks. You do the math. That’s right – even with giving the non-exempt employee credit for the normal two paid 15 minute breaks, the DOL opined that the intersection of my two favorite statutes does not require an employer to pay the additional 1.5 hours per day that the employee is not working. Nothing shocking or novel there. It confirmed what we’ve been advising for years.

The Opinion Letter based its guidance on a fact-specific scenario where a non-exempt employee provided the employer with an FMLA certification requiring him or her to take a 15 minute break every hour during an eight hour shift. Generally, rest breaks of 20 minutes or less are paid breaks under the FLSA. Here, the 15 minute break time every hour would be FMLA job-protected time away from work, up to the total of 12 weeks per year (as defined in the employer’s policy). The DOL reiterated that whether or not an employee must be compensated for work time depends on whether the time is spent predominantly for the employer’s or the employee’s benefit. Here, the DOL says that these 15 minute breaks, based on the facts, are for the employee’s benefit, so the employer does not have to pay the employee for the time spent ‘breaking’ outside of the normally compensable rest breaks.

While not particularly enlightening, the DOL did its job, and employers rejoice. In addition, this Opinion Letter leads to several good reminders:

  • Reasonable accommodations come in many forms. Think creatively and consult counsel when questions come before making a potentially risky decision.
  • Remember to analyze each situation under each different applicable law – here, FMLA, ADA, and FLSA (oh my!).
  • The Opinion Letter did not address whether this person could do a light duty job, whether the break time was due to a work-related injury, or how long the restriction was in place. If the facts change, the legal analysis can change.
  • Don’t forget about state-specific requirements.

Here’s to hoping for more Opinion Letters soon. The anticipation is better than the actuality!