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Workers entitled to bathroom breaks.

Byline: ON THE JOB By Dan Grinfas Bureau of Labor and Industries

Question: I work in a call center, and my employer has threatened to take corrective action against workers who leave their desks for frequent restroom breaks. Is it legal to deny `bathroom privileges' or to state that employees must use the restroom only during meal periods and coffee breaks?

Answer: Your employer may certainly request that you use the restroom during designated meal periods and rest breaks, when possible, so as not to disrupt the performance of work. However, employees who need to use the `facilities' at other points during the workday shouldn't be denied reasonable restroom breaks as necessary.

The Oregon regulation on rest breaks and meal periods, OAR 839-020-0050, requires that nonexempt employees receive at least a 30-minute, uninterrupted meal period when their work period is six hours or greater, and also requires a 10-minute paid rest break at the midpoint of every four-hour segment or major portion of four hours in the work period.

The rules don't specifically reference bathroom breaks for most employees, but do state that an adult employee working alone in a retail establishment can go without rest breaks for periods of less than five hours, provided that the employee is allowed to leave the assigned work station when he or she `must use the restroom facilities.'

Denial of bathroom breaks also can be a health and safety violation. A compliance memorandum from the federal Occupational Health and Safety Administration, or OSHA, refers to the adverse health effects, including constipation, abdominal pain, urinary tract infections, renal damage, diverticuli and hemorrhoids, which can result if employees don't receive necessary restroom breaks.

In 1997, OSHA issued a $332,500 fine to Hudson Foods, a poultry processing plant in Missouri, for violations including failure to provide employees sufficient restroom breaks.

The OSHA regulations dictate the minimum workplace ratio of toilets to workers, but don't specifically speak to employees' rights to use the toilets. Still, OSHA determined in the Hudson case that the company violated the law when they refused to grant bathroom breaks.

An official Standards and Compliance Letter issued by OSHA in April 1998 says employers must give workers prompt and reasonable access to toilet facilities.

Disciplining employees for excessive bathroom breaks might also adversely impact women, as medical studies show they generally need to urinate more frequently than men.

Of course, employers may legitimately discipline employees for abusing `bathroom breaks' when the time is actually being used for other purposes, such as for extra smoking breaks.

Question: I have Irritable Bowel Syndrome, or IBS, and when my condition flares up, I may need to visit the bathroom many times throughout my work shift. In some cases, I am unable to report to work at all. Can my employer fault me on a performance evaluation if I don't reach the minimum production goals, or do I have legal protection?

Answer: Hopefully, you have provided your employer medical certification concerning your condition, as IBS can be a disability protected under the federal Americans with Disabilities Act and the Oregon disability statutes. Your condition may also qualify as a chronic `serious health condition' under the family and medical leave laws, allowing you up to 12 weeks of protected time off during the year.

However, when you're at work, your employer may hold you to the same performance standards as other employees. You're entitled to any reasonable accommodation that will help you to accomplish the essential job functions, but if you can't meet work expectations even with accommodation, the employer may apply its regular discipline rules.

On The Job is written by Dan Grinfas of the Oregon Bureau of Labor and Industries. Contact BOLI at (503) 731-4200, or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.
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Title Annotation:Columns
Publication:The Register-Guard (Eugene, OR)
Article Type:Column
Date:Feb 8, 2004
Words:632
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