Doctor-ordered breaks

thomas · January 2008

We have a 40 hour per week employee who was injured outside of work several months ago. As part of the FMLA process, we received certification from her health care provider verifying the need for a reduced work schedule (can work no more than 4 hours per day) as a result of her condition. In addition, the health care provider indicated the need for a 15 minute break each hour.

Under Washington law, employees shall be allowed a rest period of not less than 10 minutes, on the employer's time, for each 4 hours of working time. Are we obligated to pay for each break taken as a result of her health care provider's instructions?

NeedCoffee · January 2008

I'm going to go out on a limb here and guess that no, you are not obligated to pay. Think of it this way - when the HCP mandates that the EE work no more than 4 hours per day, he is essentially mandating that the EE have a "break" of 20 hrs between shifts. You're not expected to pay for time she's not working, so you shouldn't pay for time she's at work but not working either (outside of state-governed breaks, of course!).

Once again, this is just a guess, but that's how I'd rationalize it because Texas doesn't mandate any breaks whatsoever.

thomas · January 2008

Thanks for your reply. Appreciate the feedback!

HRinVA · January 2008

It is my understanding that while the FLSA does not require breaks, if you allow them, breaks of less than 20 minutes must be paid:

29 CFR 785.18 - Rest.

Section Number: 785.18
Section Name: Rest.
--------------------------------------------------------------------------------
Rest periods of short duration, running from 5 minutes to about 20
minutes, are common in industry. They promote the efficiency of the
employee and are customarily paid for as working time. They must be
counted as hours worked.

I would ask, is allowing someone to work 4 hours a day and take a 15 minute break every hour a reasonable accommodation? Do you have a policy that allows you to set a time limit for such an accommodation?

thomas · January 2008

We were under the impression that as long as a reduced leave schedule under FMLA was medically necessary, we had to allow the 4 hour workday. We would like to work with the employee but hoped we wouldn't have to pay for the 15 minute breaks each hour. In answer to your question regarding a policy to allow such an accommodation, we have no written policy for such action.

Thanks for your input. It is very much appreciated!

Rockie · February 2008

I'd charge this extra break time as part of intermittent FMLA since it is doctor ordered and is in connection with her FMLA. She is really only working 3 hours a day, not 4 if you factor in the breaks.

thomas · February 2008

Rockie,

Thanks for the feedback. The employee's health care provider has released the employee to return to work full-time so the issue is a mute point at this time.

Doctor-ordered breaks

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