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Pull Over the Potty Police

Unless employees seem to be abusing bathroom rights, or breaks interfere with performance or production, let them be.

September 3, 2014
Related Topics: FLSA, Policies and Procedures, The Latest, Legal
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At work, I drink a lot of coffee — probably five to six mugs during the course of a day. In fact, I’m staring at my grande dark roast, black, as I type. Luckily, my office is across the hall from the men’s room. Some workers aren’t so lucky.

In fact, some work for companies that try to limit the amount of time spent in the washroom. For example, I recently came across a story in which an employer limited its employees to six minutes of potty time per employee each day.

Do you know that the U.S. Occupational Safety & Health Administration protects the right of employees to go to the bathroom?
OSHA’s sanitation standard states, “Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.”

The OSHA standard tells you everything you would ever want to know about workplace bathroom facilities, including the minimum number of loos required per number of employees. Thankfully, it also forbids employees from “consum[ing] food or beverages in a toilet room” (just in case your employees like to snack while taking care of business). It does not, however, affect your co-worker who inappropriately likes to take phone calls or answer emails while indisposed.

It’s not enough that employers provide toilets; they also must provide access for employees to use them. That right, however, is not unfettered. According to an April 6, 1998, OSHA director’s memorandum, employers can place reasonable restrictions on bathroom access.

What do these reasonable access restrictions look like? An Ohio court opinion, Zwiebel v. Plastipak Packaging Inc.,provides an answer. Plastipak terminated Mark Zwiebel, a production-line operator, for leaving his machine three times in one shift, which included once to use the bathroom.

Zwiebel claimed that his termination wrongfully violated the public policy embodied in OSHA’s restroom standard. The court disagreed, concluding that OSHA does not permit employees to leave their tasks or workstations at any time without responsibly making sure that production is not jeopardized. Thus, the employee lost his wrongful discharge claim because his breaks unreasonably interfered with production. Going to the bathroom is one thing; abandoning one’s job is another.

What about pay? Can an employer deduct bathroom time from an employee’s pay? The answer is no. Under the Fair Labor Standards Act, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The U.S. Labor Department includes “restroom breaks” as an example of these short-duration rest periods for which an employer must pay its employees. Thus, failing to pay your employees for time spent taking care of their personal business will subject you to a claim for unpaid wages.

Moreover, if the employees are exempt, pay deductions will also jeopardize their exempt status. You are required to pay exempt employees a weekly salary. Taking short-time deductions from employees’ pay treats them like hourly workers, which, in turn, destroys the exemption for that job class.

In addition to these legal reasons to permit reasonable bathroom access and pay your employees for bathroom time, there is also a good practical reason supporting this access. Treating your employees like tagged wildlife — tracking and recording their every move within the workplace — will create a work environment of distrust and apathy.

Instead, treat all employees like professionals, and address performance-based issues as they arise. Is an employee failing to produce because he or she is spending too much time in the bathroom (or taking smoking breaks, or hanging around the coffee machine, or looking at Facebook, etc.)? Then address the performance issue. Is there a medical reason for which the employee needs a reasonable accommodation? Is the employee not busy enough and looking for other ways to fill time? Or is the employee a slacker who needs counseling, and if necessary, discipline?

Employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless employees seem to be abusing bathroom rights, or breaks interfere with performance or production, let them be.

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