The Family and Medical Leave Act is the federal law that allows certain employees to take up to 12 workweeks of leave to attend to a serious health condition, either their own or that of an immediate family member. FMLA leave is unpaid, however, meaning that the employer does not have to compensate the employee during any leave taken. To put it another way, if an employer refuses to compensate you while on FMLA leave, it is not considered a violation of the wage and hour provisions of the Fair Labor Standards Act (FLSA).
Labor Department Letter Suggests Employers do Not Have to Pay Workers for Medically Required Rest Breaks
Although most of us would normally think of “leave” in terms of days or weeks, it can also refer to a few hours during a given workday. For instance, you might take two hours of unpaid leave for a doctor's appointment. But what if you just need to take a 15-minute break due to a medical condition? According to a recent letter from a top U.S. Department of Labor official, that may be enough to qualify as unpaid leave under FMLA.
Last year the Department resumed issuing “opinion letters” in response to questions from employers regarding interpretations of federal labor laws like the FMLA and FLSA. The Obama administration ceased issuing such letters in 2010, but the Trump administration revived the practice. The opinion letter in this case was issued by Bryan Jarrett, the acting administrator of the Labor Department's Wage and Hour Division, which oversees FLSA enforcement.
The letter itself was in response to an inquiry from an attorney representing a group of unidentified employers. They wanted to know the Division's position on whether an employer covered by the FLSA and FMLA is required to pay employees for 15-minute breaks that are required by an employee's medical condition “as certified by a health care provider.” Specifically, the employers presented a hypothetical scenario in which an employee would need to take a 15-minute break each hour during the workday, thereby reducing the total hours worked during a standard eight-hour shift to six hours.
Jarrett responded that under these specific conditions, the employee breaks are covered by FMLA, and therefore the employers would not have to pay the employees during this time. Jarrett said that under applicable U.S. Supreme Court precedent, employees are only entitled to compensation for their time when it is “spent predominantly for the employer's benefit.” This includes normal break periods of up to 20 minutes, as it benefits the employer to have a “re-energized employee.”
That said, Jarrett noted that the courts have recognized situations in which break periods “primarily benefit the employee and are not compensable.” Although the Supreme Court has not directly ruled on this issue, Jarrett cited a federal court decision from Michigan that held that an employee did not have to be paid during “breaks to accommodate the employee's back pain,” since that predominantly benefited the employee rather than the employer. Along similar lines, a break designed to “accommodate the employee’s serious health condition” under FMLA would also be non-compensable.
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There are a number of caveats here. Jarrett himself acknowledged that an employer must give all employees the same number of paid rest breaks regardless of their medical condition. The letter itself simply reflects the Division's current opinion; it is not a binding statement of law. Finally, while the FMLA may not require companies to compensate worker for health-related rest breaks, New York State and New York City law may impose different obligations on local employers.
If you work in New York and have questions or concerns about whether your employer is complying with all applicable wage and hour rules, contact the employment attorneys at White, Nisar & Hilferty, LLP, today.