Department of Labor says rest breaks for serious health conditions can be unpaid

Joe M. Sexauer

You are an employee with a serious health condition. You give your boss a doctor’s note saying this condition requires 15-minutes breaks every hour during work. So, you work 6 hours out of 8. Your company is covered by the FMLA and FLSA. Like most employees you are non-exempt (i.e. over-time law applies to you). You use intermittent FMLA for these daily breaks. Does the law require your boss pay you for these breaks?

A recent Department of Labor opinion letter says the law does not require such breaks be paid. However, it does say that any paid break, often two a day, provided to all employees, must be paid to employees, even if their doctor requires them to take a break every 15 minutes

This letter interprets whether the break is primarily for the benefit of the employer, and therefore paid, or primarily for the benefit of the employee, and therefore unpaid. The Supreme Court held that an employee’s time is compensated depending if it is “spent predominantly for the employer’s benefit or for the employee’s.” Circuit courts and regulations hold that short breaks up to 20 minutes are ordinarily compensable. However, the opinion letter noted a Circuit court decision holding that frequent breaks to accommodate an employee’s back pain were not compensable. Employees can also use their paid leave to cover the economic losses of their intermittent FMLA.

This opinion letter enables employers with another way to pay employees less money. Employees that work in industries that either accommodate or cause serious medical conditions will be provided the opportunity to choose between either a pay cut of over 10% or working through pain, not provide the doctor’s note, and risk further injury.