While a small number of states require employers to give non-exempt employees breaks, there is no such requirement under federal law. However, if an employer decides to allow employees to take short rest breaks, they must compensate them during the time. (Employers do not have to compensate employees for longer meal breaks so long as the employees are completely relieved from duty).

But what happens if an employee has a note from a doctor stating that the employee has a serious medical condition that requires the employee to take a 15-minute break every hour? Does an employer really need to compensate short breaks that occur so often?

The Department of Labor, Wage and Hour Division recently issued an advisory opinion addressing this question. In the facts presented in the employer letter to the DOL, the employee requested under the Family Medical Leave Act (“FMLA”) that the employer allow him to take 15-minute breaks every hour because of his serious medical condition. The question presented was whether such FMLA-protected breaks were compensable. The DOL advised that they were not. They differentiated these types of breaks from short compensable breaks because short compensable breaks generally benefit the employer by promoting efficiency and boosting productivity, while these breaks predominantly benefited the employee as an accommodation. In short, the DOL advised that these breaks are governed under the FMLA — which does not require compensation for leave — as opposed to the FLSA. But the letter emphasized the importance of equal treatment; if compensable rest breaks are offered, then the employee requesting FMLA-protected breaks is still entitled to the same number of compensable rest breaks as his co-workers.

Moving forward, this advisory opinion provides some clarity on the interaction between the FMLA and FLSA when it comes to breaks. First, if an employee requests frequent short breaks under the FMLA above and beyond what is normally offered, then the employer is not required to pay for those breaks. But second, if an employer decides to offer compensable short rest or coffee breaks to employees, those breaks need to be provided equally to all non-exempt employees.