BATHROOM BREAKS – WHEN CAN AN EMPLOYER REGULATE THE TIMING AND LENGTH OF AN EMPLOYEE’S TRIPS TO THE RESTROOM?
California is one of few states that entitle employees with regular rest breaks. Generally, an employer must allow an employee to take a ten minute break every four hours, preferably in the middle of the four hour period. This break must be paid.
But beyond these rest breaks, what can an employer regulate in terms of necessary personal time, such as timing and frequency for calls of nature?
- Do trips to the bathroom count toward these two paid breaks?
- What happens if an employee must use the restroom more than two times during the day? What if a sick employee needs to use the restroom for more than ten minutes?
- What if the employee abuses his or her restroom privileges and leaves the workstation excessively?
Although these may be embarrassing topics, these are real issues that employers and employees face every day.
Bathroom Breaks Do Not Count As Part of the Lawfully Mandated Rest Period
A trip to the bathroom will not count against the employee’s paid rest break time. In California, an employee generally enjoys the privilege of using the restroom without the law’s interference.
The California Division of Labor Standard Enforcement’s Policies and Interpretations Manual explains that the mandated rest period should not be confused with use of restroom facilities. If an employer allows an employee to use the restroom, the time an employee spends in the restroom will not be counted as part of a rest period. The rest period must be provided in addition to the amount of time for bathroom use.
For example, if an employee uses 4 minutes to use the restroom, an employee will still be entitled to 2 full 10 minute rest breaks. But even though the law doesn’t regulate bathroom time, that doesn’t mean the employer can’t.
An Employer May Still Reasonably Limit an Employee’s Use of the Restroom
Brief non-working gaps in the workday are considered a privilege, not an entitlement. Therefore, an employer who permits employees to use the restroom without regulation is providing employees with a privilege that the employer rightfully expects should not be abused.
If an employee is habitually using the restroom in excessively, an employer has the right to reasonably limit the amount of time an employee may be absent from his or her work station. There is no bright-line standard for what kinds of limitations are appropriate on use of the workplace restrooms.
At least one company has approached this sensitive subject by establishing the time allowed for bathroom breaks as part of the negotiation process with employees. In its 2005 memorandum of understanding, Ford Motor Company agreed to give employees 48 minutes per shift for bathroom time. Shockingly, Ford issued a memoranda to its employees that year, explaining that managers would begin to keep a close eye on time spent in the bathrooms, because so many employees were using more than their 48 minutes per shift.
The bottom line is: An employer may not impose unreasonable restrictions on employee use of facilities, but may provide sensible limits on use. If an employer places unreasonable restrictions on use, employees may file a complaint with the Occupational Safety and Health Administration(OSHA). Each complaint received by OSHA is looked at on a case-by-case basis, looking to the environment, nature of the restriction, and the employer’s justification. Consideration is also provided to whether the policy is general and whether an employer recognizes employees’ medical needs or reported adverse health effects.
An Employer May Be Required To Reasonably Accommodate an Employee Whose Disability Requires Increased Bathroom Use
If an employee has a disability recognized by law, the Americans with Disabilities Act and the California Fair Employment and Housing Act both require employers to reasonably accommodate employees with disabilities. This may include providing the employee with more time to use the toilet facilities.
In the 2009 Marin County case A.M. v. Albertsons, LLC, a checker was suffering from dry mouth, resulting from her cancer treatment. Consequently, she had to keep a water bottle with her at all times and increase her consumption of water. She logically had to make numerous trips to the restroom during her shift, as often as every 45 minutes, and this was accommodated by her regular managers. However, when one manager, unaware of her medical condition, refused to let her leave her station to use the restroom, the employee could no longer hold it and lost control of her bladder in front of customers.
The employer’s failure to provide her in just this one instance with a reasonable accommodation for her disability was found to have violated her rights under the California Fair Employment and Housing Act. A jury awarded the Plaintiff a total of $200,000: $12,000 for past lost wages, $40,000 for future medical expenses, and $148,000 for past emotional distress. The plaintiff had lingering psychological effects; she was diagnosed with post-traumatic stress disorder as a direct result of the incident.
Employers must therefore be extremely careful to keep supervisors informed of accommodations made for employees with disabilities. Even one incident of failure to accommodate could result in a devastating experience for an employee, and major ramifications for the employer. As demonstrated by A.M. v. Albertsons, this is especially true in the area of disabilities that deal with bathroom issues.