As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid.

The opinion letter resolved an apparent conflict between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).Under the FMLA, an employee is entitled to up to twelve weeks of unpaid leave per year for his/her serious health condition (among other qualifying reasons), which can be taken intermittently in as short of increments as are used for other types of leave (but no greater than one hour). Under the FLSA, breaks lasting twenty minutes or less are for the employer’s benefit and compensable time. According to the DOL, these short breaks allow employees to re-energize, which promotes efficiency and productivity and benefit the employer. Longer breaks are primarily for the employee’s benefit and non-compensable time.

The issue presented in the opinion letter was a common one. An employee required a fifteen-minute break each hour as intermittent FMLA for his/her serious health condition. This meant that the employee would perform only six hours of work per eight-hour shift.

The DOL opined that breaks for FMLA-protected conditions are primarily for the employee’s benefit and non-compensable. It would have been simple if the DOL stopped there, but the DOL created an exception. The employee with FMLA-protected breaks is still entitled to the same amount and duration of paid breaks as other employees. So, if the employer provided two fifteen-minute breaks per eight-hour shift, as is common, two of the eight hourly FMLA breaks would be paid, and six would be unpaid.

This exception could create issues, however, where the breaks are unscheduled and not tracked. While breaks on a production line are often scheduled to the minute, many employers in more flexible work environments allow their employees flexibility to choose when to take their fifteen-minute break(s) and do not track exact times when work started and stopped. Imagine that the employee who takes FMLA alleges that employees routinely take three fifteen-minute breaks, even though the policy provides for only two breaks. This would mean that the employee who takes FMLA leave is treated less favorably than his/her coworkers. There also would be no time clock records to prove that only two breaks, each fifteen minutes in duration, were taken (because employees usually do not record paid breaks in the timekeeping system).

Even though this opinion letter resolves a conflict between the FMLA and FLSA and provides much-needed clarity, employers should proceed cautiously before designating breaks taken as FMLA intermittent leave as unpaid. Careful examination of the work and break schedules of employees in that same job title or class should be conducted before deeming FMLA-related breaks paid or unpaid.