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DOL Issues New Opinion Letters on Wage and Hour Issues – Compensability of Health-Related Rest Breaks

April 23, 2018

The U.S. Department of Labor (DOL) has issued three new Wage and Hour opinion letters giving employers additional guidance on compensation for travel time, pay for health-related rest breaks, and whether lump sum payments are subject to garnishments. This demonstrates the commitment of the DOL to re-establish the opinion letter program which was eliminated during the Obama administration.

In particular, the health-related rest break opinion letter is interesting as it addresses both wage and hour compensability issues as well as the interaction with Family and Medical Leave (FMLA) intermittent leave. In the letter, the employer asks if an employee is entitled to be paid for 15 minutes regardless of how many breaks the employee takes throughout the day as required by medical necessity (in this case two hours of breaks). The confusion comes from Fair Labor Standards Act (FLSA) regulations which state that “rest periods of short duration, running from five minutes to about 20 minutes. . . must be counted as hours worked.” The employer had several employees whose doctors certified that they needed 15 minute breaks every hour for their serious health conditions as FMLA reduced schedule leave. Taken literally, the FLSA regulations would appear to mandate two hours of paid rest time throughout the day for the 15 minute breaks.

Thankfully, the DOL clarified that while rest breaks up to 20 minutes are “generally compensable”, where the breaks are primarily for the employee’s benefit as a medical accommodation, they do not have to be paid. This is consistent with the FMLA regulations that only mandate unpaid leave. However, if the employer already permits other paid short breaks, the employee would be entitled to be paid for those breaks on the same basis as other employees. This would also presumably apply for Americans with Disabilities Act (ADA) reasonable accommodation breaks for those employees who are not eligible for FMLA leave.