Tag Archives: FMLA Leave

DOL Opinion Letter: Excessive 15-Minute Breaks Are Not Compensable

Contributed by JT Charron, April 25, 2018

On April 12, 2018, the Department of Labor (DOL) issued an opinion letter addressing the intersection between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) when an employee needs multiple rest breaks throughout the day due to an FMLA covered serious health condition.

employee with clock in background

Employee working with clock in background


The FLSA generally requires employers to compensate employees for all time spent working. Although the Act does not require employers to provide rest or meal breaks, it does regulate whether such breaks—if provided by the employer—must be paid as compensable working time. Specifically, breaks of up to 20 minutes are generally considered primarily for the benefit of the employer and must be paid.

The FMLA, on the other hand, provides eligible employees with up to 12 weeks of unpaid job-protected leave for employees with a serious health condition. FMLA leave may be taken incrementally and, in certain circumstances, in periods of less than one hour.

Employers are not required to pay for excessive breaks

What if an employee needs to take multiple breaks during the work day due to his/her serious health condition? According to Opinion Letter FLSA 2018-19, such breaks are not compensable because they are not “primarily for the benefit of the employer.” Importantly, however, the DOL noted that an employer must still compensate the employee for breaks she would have received regardless of her serious health condition. To illustrate this point, the DOL provided the following example:

[I]f 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.

Employer takeaway

Employers can rest easy knowing that they do not have to pay employees for unlimited rest breaks simply because they are necessitated by an FMLA-approved serious health condition. Employers should carefully administer and track any such breaks to ensure compliance with both the FMLA and FLSA—along with any applicable state or local laws (e.g., local paid sick leave laws and required paid rest breaks).


Is Your Holiday Cheer Being Intermittently Dampened by Concerns of FMLA Abuse?

Contributed by Michael Wong

Have you noticed that an employee’s requests for leave tend to occur on a Friday or Monday?  Is an employee suddenly unable to work immediately before or after holidays? It is not unusual for employers to experience FMLA abuse, especially around the holidays. The following are a few practices that can help you combat FMLA abuse:

  1. Be Vigilant and Be Aware – Having a system that tracks when employees take FMLA leave can help you identify patterns of abuse and act quickly to investigate and address them appropriately.
  1. Control Scheduling – FMLA regulations require that absences for planned medical treatments be scheduled in a way that least disrupts employers’ operations. When dealing with an employee’s request for FMLA leave for treatment, therapy or doctor visits, you should contact the employee regarding the frequency, hours of the health care provider and ways that the schedule can be modified to decrease disruptions to your operations.
  1. Question the Employee – It is important to understand that the FMLA allows employers to require employees to keep them informed about his/her plans – which can include:
    1. Questions regarding the need for FMLA leave and anticipated On Holidayreturn date;
    2. Requiring employees to call in to verify that absences are FMLA-related;
    3. Calling an employee at home as a means of verification;
    4. Requiring written certification from employee attesting that leave is/was FMLA-related. (IMPORTANT – Employers cannot require a doctor’s note, unless it is being treated as a recertification.)
  1. Request Recertification – Employers can generally only request recertification once every 30 days. However, employers may request recertification more often if the following occurs:
    1. An extension of leave is requested by the employee;
    2. Circumstances have changed significantly since prior certification – i.e. prior certification states 1-2 days per absence and employee has taken 4 days for past two absences or a pattern of FMLA leave that coincides with holidays/days off;
    3. Employer has information that creates an honest belief that employee’s stated reason for leave is improper – i.e. employee is recovering from knee surgery, but is still playing in the company softball league.
  1. Investigate – Employers are able to monitor patterns of suspected leave misuse to ensure that an employee’s leave is legitimate, including questioning the employee, reviewing social media and even surveillance. (NOTE – Information from coworkers about an employee’s actions while on leave must be verified, to avoid allegations that the coworker was lying.)
  1. Confront the Employee – After an investigation is done, if there is evidence of FMLA abuse, confront the employee with the evidence and provide the employee an opportunity to explain what occurred. While the employee may deny the abuse, they could surprise you and admit to it.

These tips won’t entirely eliminate the problem of employees trying to take advantage of FMLA leave and intermittent FMLA, but they will help decrease FMLA abuse.