States With Pro-Employee Laws: Work Breaks For Employees

 Or, States That Don't Suck For Employees, Part VII

Some people don't believe me when I tell them that no federal law requires any breaks for employees, but it's true. No lunch breaks, rest breaks or even bathroom breaks are mandated by law (and don't tell me about OSHA and bathroom breaks*). A majority of states also don't have any laws requiring breaks for anyone but minors.

Still, if you're lucky you might live in a state that has some laws requiring work breaks. Here's how it breaks down:

• Meal breaks:  Only 20 states require any meal breaks. California, Colorado, New Hampshire, North Dakota and Washington require 1/2 hour within five hours of work. Connecticut and Delaware require ½ hour after first 2 hours and before last 2 hours for employees who work 7½ consecutive hours or more.Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oregon, Rhode Island, Tennessee, Vermont and West Virginia all have laws about meal breaks. In the other 30 states, employers are allowed to starve you.
• Rest breaks: Only nine states require any rest breaks. California, Colorado, Kentucky, Nevada, Oregon and Washington require 10 minute breaks for every 4 hours of work. Minnesota and Vermont require reasonable bathroom breaks. Illinois also has rest break requirements but only for hotel attendants. All of these states also require meal breaks. 

If you aren't in one of these 20 states, you're at the mercy of your boss to be allowed to eat, go to the restroom, or just take a stretch. Yet I still encounter folks regularly in Florida (one of the no-breaks-for-you states) that get fired after insisting on their legal right to take their lunch or rest break.

True, most bosses won't actually make you have a potty accident, but there are sadistic jerks out there who will. You do have some rights though, despite this.

Disability: If you need regular meal or bathroom breaks due to a disability, then put in a reasonable accommodation request under the Americans With Disabilities Act and have HR mandate your breaks. If the boss still won't honor your approved accommodation, report him/her to HR. If the company won't accommodate you, you probably have a disability discrimination case.

Nursing: You're entitled to a break and a private place to express breast milk if you're nursing.

Sex discrimination: I ran into a woman who was told she couldn't take her purse to the restroom when she had her period. Men had no restrictions on what they could take to the restroom. Fortunately, she reported it and HR had the sense to stop this silliness immediately.

Obviously, if the employer is only allowing employees of a particular race, national origin, age or other protected category to take breaks, that's also illegal. I shouldn't say it's obvious though, because any boss who doesn't allow reasonable bathroom or meal breaks is a sadistic idiot.



*I know I said don't tell me about OSHA, but they really are supposed to make employers allow reasonable bathroom breaks. See OSHA Standard # 1919.141(c)(1)(i): 

OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(l)(i), requires employers to provide their employees with toilet facilities:

Except as otherwise indicated in this paragraph (c)(l)(i), toliet [sic] facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section .... [emphasis added]

This memorandum explains OSHA's interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities." "The language and structure of the general industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly."  “In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays.

So yes, OSHA does state that they require employers to allow prompt bathroom breaks. I wish you good luck in actually getting OSHA to enforce this standard though. At least in Florida, they'll probably refer you to the Department of Labor, which has nothing whatsoever requiring bathroom breaks under their jurisdiction.

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 . . .