On January 12, 2009, the Bureau of Labor and Industries (BOLI) clarified meal and rest period requirements in situations where providing a 30-minute uninterrupted meal period is not feasible.

The revised rule (OAR 839-020-0050) still requires the same basic 30-minute, unpaid meal period in which the employee is relieved of all duties for shifts longer than six hours, but also states that an employer need not provide an employee with a 30-minute uninterrupted meal period if it can demonstrate that:

• Failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
• Industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which the employee is relieved of all duties; or
• Providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose and undue hardship on the operation of the employer's business.

When an employer can demonstrate that providing an employee a meal period would impose an undue hardship, employees must still be given adequate time to consume a meal, to rest, and to use the restroom and must be paid for this time, and such time is in addition to all rest periods required by rule for the number of hours worked on any given shift.

In addition, starting on March 16, 2009, employers must provide a copy of a notice to each employee affected by the undue hardship provision on a form prescribed by BOLI and must maintain a record of that notice. The rule defines "undue hardship" to mean: "significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business."

Determining factors include:

• The employer's cost of complying with the requirement to provide a meal period;
• The overall financial resources of the employer;
• The number of people employed at the particular worksite and their qualifications to relieve the employee; the total number of people employed by the employer; and the number, type and geographic separateness of the employer's worksites; and
• The effect providing the meal period would have on: the start-up or shutdown of machinery in continuous operation industrial processes; intermittent and unpredictable workflow not in the control of the employer or employee; the perishable nature of the materials used; and the safety and health of the employees, patients, clients, and the general public.

For more information, see Littler's ASAP Oregon Employment Law Developments: Meal Periods, Family Leave and Smokefree Rules.

This blog entry was authored by Amy Alpern.