When the FLSA and the ADA Meet…

By Fiona W. Ong - Shawe Rosenthal LLP

April 20, 2018

So after a hiatus of many years, the Department of Labor has once again begun issuing opinion letters, which are responses to a particular employer’s situation that offer guidance to all employers on specific issues under the Fair Labor Standards Act. This is quite exciting for employment law nerds like me – and one of these letters highlighted an interesting interaction between the FLSA and disability laws like the Americans with Disabilities Act and analogous state laws. (OK, I know that you’re on the edge of your seat now…)

Over the years, an accommodation request that has frequently come up for my clients is break time. Employees have requested more frequent breaks because of some medical condition to go to the bathroom, to eat or drink, to alleviate back pain from too much sitting, and to rest from standing. I’ve even had one employee with focus and concentration issues from a mental health condition request breaks to play video games! (And yes, his health care provider specifically noted that as an accommodation!). But do these breaks need to be paid? After all, the employee is not working for quite a lot of time during the workday.

As the DOL notes in its Opinion Letter FLSA2018-19, under the FLSA, rest breaks of up to 20 minutes are paid time. This is because such breaks are generally considered to be predominantly for the benefit of the employer. The thinking is that these breaks promote efficiency and re-energize the employee. But the DOL also notes that there are limited circumstances in which such breaks predominantly benefit the employee – and those breaks do not need to be paid.

In the Opinion Letter, the DOL states that breaks that are being taken because of an employee’s serious health condition under the Family and Medical Leave Act benefit the employee rather than the employer, and therefore are non-compensable. In making this determination, the DOL cited a federal case, Spiteri v. AT&T Holdings, Inc., in which an employee needed 15-minute breaks throughout the day because of back pain. The employer provided two paid 15-minute breaks and an unpaid 30-minute lunch break to all employees, which could be used by the employee for his back pain. But to the extent that he needed additional breaks, the employer told the employee that he would have to make up that time by adding on to the end of the workday. The employee thought this requirement violated the FLSA and that the employer failed to provide him a reasonable accommodation under the state disability law. But the wise court disagreed.

As to the FLSA claim, the court stated, “It is not objectively reasonable to believe that one should be paid for eight hours of work while spending a third to a quarter of that time on personal breaks.” Therefore, the employee could not have a good faith belief that there was a violation of the FLSA.

And as to the employee’s claim that requiring him to make up the break time made the accommodation unreasonable, the court held that, “Common sense and the law demonstrate that Plaintiff’s request that he be permitted to take unlimited personal breaks throughout the day, not make that time up and still be paid for an eight hour workday is not a request for a reasonable accommodation.” In coming to that conclusion, the court relied on commentary from the Equal Employment Opportunity Commission and the DOL.

The court first noted,

The Equal Employment Opportunity Commission (“EEOC”) has suggested that a reasonable accommodation  under the Americans With Disabilities Act (“ADA”) for an employee with diabetes who needed to take additional breaks during the day to eat in order to maintain blood sugar levels, would be for the employer to allow the employee to take two additional 15 minute breaks each day and allow the employee to make this time up by arriving 15 minutes early and staying 15 minutes later. See http://www.eeoc.gov/laws/types/diabetes.cfm.

The court went on to cite the DOL’s commentary on the amendment to the FLSA to allow female employees to take lactation breaks for up to one year after the birth of a child. The DOL noted that, if the employer provided paid breaks to employees, an employee using that break to express breast milk would need to be paid for the break. But, “[a]dditional time used beyond the authorized paid break time could be uncompensated.”

So, bottom line – if an employee requires breaks because of a serious health condition under the FMLA or as a reasonable accommodation under the ADA, they are entitled to the normal paid breaks provided to all employees. But if they require breaks beyond the normal breaks, they can either be required to make up the time at the beginning or end of the workday, or those additional breaks may be unpaid. Really, I guess you can consider this a break for employers!