Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, November 2, 2012

No Bathroom Breaks For You!

One of my most popular posts ever on this blog was the Top 10 Employment Laws You Think Exist - That Don't. In it, I talk about rights employees erroneously think they have, like the right to be fired for a good reason, free speech, the right to work in a place that isn't a hostile environment, and the right to privacy.

In this post, I talk about breaks, which are frequently misunderstood. I said, "No federal law requires employers to offer any work breaks for anything, even meals. Some state laws do require work breaks, but it’s not a majority. No law requires bathroom breaks, but it's probably a health issue, so OSHA might protect you if your employer denies bathroom breaks."

My comment about OSHA was a fit of optimism, because I've found nothing in OSHA regulations requiring bathroom breaks. Oh, sure, they require that employers provide bathroom facilities and that they be accessible to employees (not permanently locked). It makes logical sense that they would have to allow employees to actually use them.

Indeed, here's what OSHA says about the requirement to provide toilet facilities:
The sanitation standard is intended to ensure that employers provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. Individuals vary significantly in the frequency with which they need to urinate and defecate, with pregnant women, women with stress incontinence, and men with prostatic hypertrophy needing to urinate more frequently. Increased frequency of voiding may also be caused by various medications, by environmental factors such as cold, and by high fluid intake, which may be necessary for individuals working in a hot environment. Diet, medication use, and medical condition are among the factors that can affect the frequency of defecation.

Medical studies show the importance of regular urination, with women generally needing to void more frequently than men. Adverse health effects that may result from voluntary urinary retention include increased frequency of urinary tract infections (UTIs), which can lead to more serious infections and, in rare situations, renal damage. . . . UTIs during pregnancy have been associated with low birthweight babies, who are at risk for additional health problems compared to normal weight infants. . . . Medical evidence also shows that health problems, including constipation, abdominal pain, diverticuli, and hemorrhoids, can result if individuals delay defecation. . . .

I mentioned this when I appeared on NPR this week on the Tropical Currents show. The show was a call-in format, so imagine my surprise when a caller told me he worked for OSHA. He called for another reason, but I asked him about the bathroom breaks issue. He advised me that OSHA directs all issues regarding breaks to the Department of Labor.

That's odd, because the Fair Labor Standards Act, administered by DOL, doesn't require any breaks whatsoever. So an employee seeking help calls OSHA and says, "My employer doesn't let me take bathroom breaks. I have to pee in the potted plant behind where I stand when I have to go." Instead of helping, OSHA directs them to an agency that can't help. And they wonder why people are frustrated with government.

Why isn't being able to take a break to relieve oneself a workplace safety issue? Can anyone at OSHA tell me? They require accessible facilities, but won't sanction employers for denying breaks to use the facilities. In what bureaucratic mind does this make any sense?

Anyhow, it's now official. In my state of Florida and every other state that doesn't have its own laws requiring breaks, there is absolutely no law or regulation that requires employers to give bathroom breaks. Doesn't it make you proud to be an American?

Think it doesn't happen? I had a caller tell me that a security guard they know had to go in the grass (which is a particular problem for women). I've had a bartender actually tell me the potted plant story a few years back. It happens. Some employers are sadistic jerks.

There are some times when not granting potty breaks would be illegal, but we have to turn to discrimination laws for help.

Disability: If you have a disability that requires you to use the facilities more frequently than your work schedule allows, you might be entitled to a reasonable accommodation under the Americans With Disabilities Act.

Pregnancy: If you are pregnant and need to go more frequently, you might be protected under pregnancy discrimination laws (but might not).

Sex: If the potted plant or grass scenario is just fine for men but is not possible for women, then it might be sex discrimination or even sexual harassment considering how much women need to undress to accomplish the task at hand.

Of course, if you're the only one not being allowed to go, or a group is singled out, then other types of discrimination such as age, race, religious, national origin, etc. might be at play.

Isn't the right to relieve oneself with some privacy and dignity a basic human right? The whole thing is barbaric.

There ought to be a law . . .

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  4. Regarding "accessible facilities": In federal labor cases like Prince v. Electrolux, the courts have ruled that denying employees time to use bathroom facilities equates to "inaccessible facilities" legally speaking, so while the letter of the law is far from clear, the intent of the law is established at this point in employees' favor, and does offer protection for reasonable employee bathroom breaks.

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