Rest Breaks: Legal and Practical Considerations

Rest Breaks: Legal and Practical Considerations

Most employers recognize that periodic work breaks are beneficial for employee health and productivity, and can reduce accidents and mistakes caused by fatigue and boredom. You should, however, consider a number of different factors before establishing a policy on rest breaks. These factors include applicable federal or state legal requirements, special employee needs, and differing job requirements. Consideration of these factors will help you establish an effective policy.
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Editor's Note regarding citations used in this article:

References to "C.F.R." refer to the Code of Federal Regulations, the official government publication for federal regulations.
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* Wage and Hour Laws *

Federal wage and hour laws do not require employers to provide rest breaks but, if breaks are provided, they generally must be treated as paid work time. According to the Fair Labor Standards Act (FLSA), employers providing rest breaks of 5 to 20 minutes must pay nonexempt employees for the time and count it in determining the number of hours worked (see 29 C.F.R. §785.18).

In contrast to federal law, some states, like California, Maine, and Minnesota, specifically require rest breaks for nonexempt employees. State laws regulating breaks vary, but often specify the timing and minimum duration for breaks. Like other violations of state wage and hour laws, the failure to enforce required rest periods can subject employers to penalties or criminal actions. Therefore, you need to be sure to check for specific state laws and regulations.

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Breaks to Accommodate Special Needs

Regardless of wage and hour laws, there are situations where an employer should consider rest breaks to accommodate particular employees with special needs, such as those with disabilities and new mothers.

1. Rest breaks as a reasonable accommodation for a disabled employee.

The Americans with Disabilities Act (ADA) requires covered employers to make reasonable accommodations to qualified disabled individuals to enable them to perform essential functions of the job. Thus, if breaks would enable a disabled employee to perform essential job functions, an employer may have to modify the employee's work schedule to allow additional or longer rest breaks (see 29 C.F.R. §1630.2(o)(2)(ii)). For instance, a court ruled that an employee who was unable to stand for long periods could be offered uninterrupted paid short breaks, and extended unpaid breaks, as a reasonable accommodation (see Stewart v. Happy Herman's Cheshire Bridge, Inc. 117 F.3d 1278 (11th Cir. 1997)). Another example would be a diabetic employee who could be accommodated with extra breaks for snacks or insulin injections.

Breaks for new mothers returning to work.

Breastfeeding women often face some difficult choices if unable to express milk at work and store it for later use. For example, they may have to choose to stop breastfeeding, take longer leaves, or even quit their jobs. Therefore, accommodations for these women can ease the transition back to work and improve retention rates. Since most breastfeeding women require breaks of only 20 to 30 minutes, they generally can use regularly scheduled breaks, with brief extensions, for this purpose.

Besides the practical arguments for accommodating breastfeeding workers, a few states, including California, Hawaii, Illinois, Minnesota, and Tennessee, require employers to give them unpaid breaks to express milk during the workday. Generally, these states require employers to provide such reasonable break time, unless doing so is unduly disruptive to operations.

No Special Breaks for Smokers

Smokers, in contrast to disabled employees and new mothers, generally are not provided special breaks. Instead, those employers that allow smoking normally confine it to regular break periods. However, some employers find that their smokers tend to abuse break time, and nonsmokers resent it. You can head this problem off by consistently enforcing break times for all employees (not just smokers) and by disciplining abuses when they occur. Consistent enforcement can lessen the perception that smokers get more breaks or that they are subjected to greater scrutiny.

Tailor Rest Breaks to Differing Job Situations

Even if not required by law, rest breaks make sense in most workplaces just based on such practical considerations as employee welfare, safety, and productivity. When there are no state mandates or ADA considerations, employers generally have the discretion to establish their own break rules and can build in flexibility to accommodate practical considerations. Although two fifteen-minute rest breaks in an eight-hour work period are common, you should consider tailoring break schedules to the requirements of the job.

For example, employees who work under high physical or mental stress may be more productive if given frequent short rest breaks. Alternatively, some employers allow nonexempt employees to take breaks as needed, instead of on a predetermined schedule, as long as their job duties are completed. However, whatever your policy, you still need to be consistent and make sure you treat similarly situated individuals or groups in a nondiscriminatory manner.

Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find a model policy on rest breaks in Rest Breaks, Chapter 704, and a discussion of the related management and legal issues in the same chapter.

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Different Benefits for Different Categories of Employees

Different Benefits for Different Categories of Employees

Q: Do we have to offer the same benefits to all employees? For example, can we give more vacation to our management employees than our nonexempt employees, or is that discrimination?

A: As a general rule, you have the discretion to determine which employees are eligible for benefits, as long as you offer them on a nondiscriminatory basis and abide by federal and state regulations. The phrase "on a nondiscriminatory basis" refers both to discrimination under equal employment opportunity and tax laws.

Equal employment opportunity laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, do not require employers to offer the same benefits to all employees. Rather, these laws mandate that employers may not discriminate against protected-class employees by excluding those groups from benefits offered to other similarly situated employees. Thus, as an obvious example, if an employer offered paid vacation only to male employees, that policy would illegally discriminate against female employees. On the other hand, if the benefits offered are based on the category of employment as opposed to the personal characteristics of the employees, this distinction generally will not be considered discriminatory. For example, if you provide an additional week of vacation to management employees that nonexempt employees do not receive, that policy is allowed because it distinguishes employees based on job duties and status.

Nondiscrimination has a different meaning under tax law. Benefits such as health insurance and welfare and pension plans generally are governed by the Internal Revenue Code (IRC) and must be offered on a "nondiscriminatory" basis in order for the benefits to be treated as nontaxable income to the participants. Certain welfare plans (including self-insured medical and group term life insurance plans) will create taxable income to highly compensated or key personnel if those employees receive a disproportionate amount of tax-advantaged benefits. In other words, plans that "discriminate" in favor of highly compensated employees may result in all or a portion of the benefits being treated as taxable income to those employees. Therefore, the IRC, as a condition for favorable tax treatment of benefits, requires certain plans to contain minimum eligibility provisions allowing for broad employee participation.

Finally, although management has discretion over eligibility for most types of benefits, federal or state law may govern the participation of workers in certain types of benefits, such as workers' compensation, Social Security, and certain pension plans.

If you are a subscriber to the Personnel Policy Manual or the HR Policy Answers on CD, you can find more information about benefits eligibility in Chapter 501, Disclosure of Benefits.

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Q/A Weather-Related Absences

Q: The winter has just begun, and already we have had employees miss work because of inclement weather. How should we deal with these absences? Can we allow employees to make up the time if we don't pay them?

A: If you have operations in areas that experience severe weather, such as winter storms, flooding, or hurricanes, you should include provisions in your policies for weather-related absences. Most employers discuss weather-related absences in their attendance policies. Any policy dealing with attendance during periods of inclement weather should give employees an incentive to get to work and should distinguish between nonexempt and exempt employees.

Many employers do not pay nonexempt employees for weather-related absences, although the absence is excused. Others allow nonexempt employees to use accrued paid vacation or personal days so that they do not lose compensation. A few employers pay all nonexempt employees for the day but recognize the efforts of those who worked by providing them with an extra floating personal day.

Some employers allow nonexempt employees to make up time missed because of inclement weather. However, if the employee makes up the time in a week in which he also works 40 hours, you will owe him overtime for the additional hours worked over 40. For this reason, many employers do not allow employees to make up the time unless it is scheduled within the same workweek as the time missed.

Exempt employees generally should be paid for absences that result from inclement weather if they have worked during any part of the workweek in which the absence occurs. If you make deductions from exempt employees' compensation for absences caused by inclement weather, you may jeopardize the employees' exempt status and incur liability for any overtime they may have worked. Deductions for absences of a day or more because of inclement weather are not specifically allowed for exempt employees by the Fair Labor Standards Act regulations and, therefore, may not be permissible.

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