Q: We have an employee who is on an approved intermittent FMLA leave for back issues. When he experiences a flare-up during the day, his FMLA papers permit him to take an unscheduled break. These breaks typically never last more than 15 minutes, and the employee is able to return to work. Yet, they are occurring eight times per day, resulting in only six hours of work during an eight-hour work day. I know that under the FLSA, breaks of 20 minutes or less must be paid. Yet, FMLA leave is unpaid? What do I do? Which law trumps, FLSA or FMLA? Must I pay this employee for his unscheduled medical breaks during the work day?
Last week, the Department of Labor Wage and Hour Division resumed its practice of publishing Opinion Letters. One of the first it published answers an interesting question about the intersection of the FLSA and the FMLA.
Must an employer pay an employee for FMLA-approved breaks taken during the work day?
I’ve taken some journalistic license and paraphrased the questions. The answers, however, are verbatim from the DOL Opinion Letter FLSA2018-19 [pdf].
A: “The specific FMLA-protected breaks described in your letter, however, differ significantly from ordinary rest breaks commonly provided to employees. As you note in your letter, the 15-minute breaks at issue here ‘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 the FMLA-protected breaks described in your letter are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are noncompensable.”
Q: Got it. We don’t have to pay this employee for his FMLA-related breaks. Since he’s already taking two hours of breaks during the work day, I assume we do not have to permit him to take the two paid 15-minute breaks we provide all of our other employees. Right?
A: Wrong. “Employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. For example, 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 receive compensation for two 15-minute rest breaks during his or her 8-hour shift.”