May employees take FMLA leave as 15-minute breaks?
Unscheduled, unforeseeable, intermittent leave under the federal Family and Medical Leave Act (FMLA) has been haunting employers since the law became effective in 1995. Despite the law’s confusion, there are really only two ways employees may take FMLA leave: In big chunks — including the full 12 weeks of leave — or in tiny pieces.
The big chunks of time (i.e., continuous leave) are the easiest to track. The tiny pieces aren’t as easy. But how tiny is tiny when it comes to intermittent leave?
What should employers do if Emma Employee has a medical condition that requires her to take a 15-minute break each hour?
Smallest increment of time
While the U.S. Department of Labor’s Wage and Hour Division has not chimed in directly on whether the FMLA allows this, it didn’t say, in a 2018 opinion letter, that it was prohibited.
In the letter, a health care provider certified an employee’s 15-minute rest breaks as required every hour and were thus covered under the FMLA.
Employers must track FMLA leave using an increment no greater than the shortest time period they use to account for the use of other forms of leave. This is true as long as:
- It’s not greater than one hour, and
- Employers don’t reduce an employee's allotted FMLA leave by more than the amount of leave actually taken.
In other words, employers may not require employees to take more leave than they need to deal with the reasons they took leave in the first place. Employers must count FMLA leave using the shortest increment of leave they use to account for any other type of leave.
Court chimes in
At least one earlier court case saw things differently from the 2018 opinion letter.
To ensure adequate coverage, employees at a company had to take their two 15-minute breaks and one one-hour lunch break at different, staggered intervals.
Sheletha struggled with attendance. Subsequently, she started taking FMLA leave to care for her mother, and the leave was predicted to affect her arrival and departure times. Despite taking FMLA leave in full days, when she was late, she said it was due to the care she was providing.
After being fired, in part for poor attendance, Sheletha sued, arguing that her tardies should have been protected by the FMLA, as she spent the time talking to her mother. The company argued that the FMLA does not entitle employees to take breaks for as long as they choose. It also said that Sheletha had no evidence that she spent the time talking to her mother.
The court leaned on another ruling that said that FMLA leave should constitute time away from a place of work, not merely periodic time away from a desk throughout the day.
Grant v. JPMorgan Chase Bank, N.A., Southern District of Texas, No. H-11-500, November 28, 2012.
In short, employees might be entitled to take FMLA leave as 15-minute breaks. The certification should, however, support this.
To pay or not?
Then there’s the question of pay. Would employers have to pay Emma for additional breaks in our opening scenario? No.
Under the federal Fair Labor Standards Act, rest breaks lasting up to 20 minutes are ordinarily paid. Sometimes, however, short rest breaks that primarily benefit the employee (like Emma) don’t need to be paid.
Employees aren’t entitled to pay for frequent accommodation breaks (that is, breaks to accommodate the employees’ FMLA reasons) that mainly benefit employees.
Key to remember: Tread carefully. Courts might differ on whether employees may take FMLA leave as longer work breaks. Additional breaks, however, don’t have to be paid.
