Do you know that Occupational Safety and 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 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’s not enough that employers provide toilets; they also must provide access for employees to use them. According an April 6, 1998, Director’s memorandum to the OSHA Regional Administrators, this OSHA standard mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.” Another issues to keep in mind when dealing with bathroom breaks is that the Americans with Disabilites Act might require extended or more frequent breaks as a reasonable accommodation.
What do “reasonable on restrictions on access” look like? Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13) 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 of appeals disagreed:
While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.
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.
Nevertheless, employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless an employee seems to abusing bathroom rights, or, like in Zwiebel, the breaks interfere with performance or production, let employees be.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com. You can also follow Jon on Twitter @jonhyman.
If the employee was on the toiletfor five minutes to ten minutes can he be terminated ?
this just happend to me i was in at 6:10, got out at 6:14 and was “laid off” after the owner had said something to me
Walmart sells adult diapers. It’s better than losing a job.
I was only in the bathroom for 5 minutes and was sent home.
My husband has IBS. He was fired about 10 days ago for using the restroom too much and going on break after using the potty. 5years 4 months for this employer. So sad.
Did they give him a warning? Did he report his problem? Go to the EEOC first and Civil Rights–Report your concerns.
As a brazilian it is so good to read such a reasonable discussion over a topic that must appear to be so simple at the fist sight… Here in Brazil the syndicalist terrorism is so high and put so much pressure over the companies, that the employees takes advantage of it to the point that, If you’ll pardon the expression, “giving a remunareted sh**” is a thing here. And then ppl wonder why stuff here is so overpriced.
I have kidney disease and a manager I don’t even get offered breaks or bathroom breaks can they do this
Might be disability discrimination for the company to deny bathroom breaks to you IF they are aware of your disease AND you requested an accommodation for the disease.
I was put in a community to sell new homes with no electric and no water. We sat on 5 gallon paint buckets for a few days until they brought us 2 chairs and a table. So we sat outside in July in Flirida for a week. Then we got electric but a month later still no water so we have to drive to a local grocery store to use the bathroom and we were told we had to text a manager when we needed to go. My first text said I needed to go offsite to use the bathroom. My manager responded with an angry emoji and said just say I’m going offsite. So when a different manager was on duty, I text him that I needed to go off site and he asked why so I said to pee and he responded TMI. When they hear the city is on the way they tell us to go sit in our cars. There are portalets but I won’t use them. Is any of this legal?
My spouse was just fired yesterday for using the washroom, the forman said that he was timing her, she had never even had a warning for doing anything wrong let alone using the washroom, Can anything be done about this….?? Please Help
We recently started using an autodialer. Management asked that we refrain from using the bathroom when the dialer is running. I had a full bladder so 3 minutes before it was scheduled to run I went to the bathroom to avoid logging off the phone once it was running. A few other people did the same. Management then said it was a problem to do that as well.
I have an issue I can’t find any answers for, I hope you can help. We have a public bathroom at work – 3 stalls. There is an employee who continuously locks the door when she’s using the facilities; thus no one else can enter. It has become an issue as we hire more females who wait (impatiently) until the door is unlocked. Because there are 3 stalls and it’s a public restroom, does the other employee have a right to lock the door? Silly as it seems, this has become a huge contention – favortism is being brought into the mix, etc. Thank you!
I have a good friend working for an institution for girls with serious, dangerous mental and emotional illnesses. They must be monitored at all times, but he’s the only employee they have and they often force him to work double shifts. The girls are not supposed to be left unattended for their own safety, but forcing someone to work 16 hours without a bathroom brake is beyond ridiculous. What does the law say?