Workers’ right to access restroom


Workers' right to access restroom refers to the rights of employees to take a break when they need to use the bathroom. The right to access a bathroom is a basic human need.[1] Unless both the employee and employer agree to compensate the employee on rest breaks an employer cannot take away the worker's right to access a restroom while working. There is limited information on the rights workers have to access bathrooms among the world's legal systems. The law is not clear in New Zealand, United Kingdom, or the United States of America as to the amount of time a worker is entitled to use a restroom while working. Nor is there clarification on what constitutes a 'reasonable' amount of access to a restroom.[2] Consequently, the lack of access to toilet facilities has become a health issue for many workers.[3] Issues around workplace allowance to use a restroom has given light on issues such as workers having to ask permission to use a toilet and some workers having their pay deducted for the mere human right of using a bathroom when they need to.[4]

New Zealand

The Employment Relations Act in New Zealand states that an employee must be provided with rest breaks associated to personal matters from their employer. Restroom entitlements cannot be contracted out of unless reasonably compensated for.[5] However, the law does not state how the employer is to calculate the cost of compensation.[6] Unless contracted out of; the Employment Relations Act states an employee must be provided with restroom breaks, in the absence of an agreement between the two parties, it is to be exercised in good faith. The statute allows an employer to take into account the employees operational environment and the employees duty to continuity of their services to their employer.[7]

Employees are entitled to restroom breaks however the law is yet to develop a specific allowance of bathroom access. Here the law bargains on “good faith” which essentially refers to employees and employers not abusing the fact that there are no clear guidelines on the issue.[8]

United States of America

The Occupational Safety and Health Administration (OSHA) Agency states that all employees must be provided with toilet facilities.[9] However, issues arise over when a worker can access a restroom. A memorandum on behalf of OSHA in 1998 stated that workers could only be restricted access to a bathroom if it was reasonable at the given time.[10] However as seen in Zwiebel v. Plastipak Packaging what is reasonable is still unclear today.[11] Mark Zwiebel was dismissed from his job at Plastipak Packaging in Ohio where he later sued the company on the grounds that they breached the restroom policy within OSHA's restroom service.[12] The court held "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."[13] Thus it is clear the court made this decision with policy in mind. The court was clear in their findings that an employee has an obligation to ensure they do not disregard their position as an employee and thus a reasonable restriction on the limitation a worker has to access a bathroom is to be allowed. And that by going to the bathroom a worker cannot be seen to be deserting their job.[14] However, this does raise issues over workers who have a large work load and that attending to the bathroom can be seen as abandoning one's job.[15]

Currently, when an employment dispute arises regarding bathroom use where an employee has been prevented or punished in terms of employment, they are referred to OSHA who decides on each individual case.[16] In addition, OSHA has ruled that where a worker has reasonably waited to visit a bathroom, or where an additional worker is not available, for replacement, in the worker's absence, then the worker is entitled to use the restroom or else the employer will be in breach of their fiduciary duties to the employee.[17] Furthermore, employees must be paid for any break which equates to less than 20 minutes which includes bathroom use.[18]

United Kingdom

In the United Kingdom the law is unclear on whether an employer can deduct an employee's pay based on the fact they have accessed the toilet for more than 20 minutes in total over a period of 6 hours of more of work.[19] The Employment Rights Act 1996 states that a worker cannot have their pay deducted unless it is authorised by statute or if the employee has consented in writing. Thus unless the employer has written in the worker's contract or the worker has given written acknowledgment an employer cannot deduct one's pay for accessing a bathroom.[20] Moreover, an employer is legally allowed to contract out of a worker's right to access a bathroom without pay; generally in this case the contract will allow for compensation given the absence of such access.[21] Furthermore, the law is unclear on whether a worker must ask for permission to use a bathroom.[22] Some workers have reported having to raise their hand, like a child in pre-school, in order for permission to be granted to simply exercise the basic human need to access a toilet.[23] The above issues are currently gaining attention through Trade Union Congress so that they may be addressed by Parliament and a specific allowance of access to a bathroom will be legally accepted.[24] The Trade Union Congress stated there is also a need for a specific legal right to use toilets in the employer's time without a deduction in pay, and without any harassment."[25]

In 2014 information was revealed that a UK call centre worker had £50 deducted from their pay for using the bathroom.[26] The term coined ‘Toilet tax’ was raised in the House of Commons where former Employment Relations Minister Jo Swinson argued that terms must be clearly outlined in the employee's contract if deductions will be made for using a restroom while working. Furthermore, she stated employers must be cautious not to underpay an employee if they are already on the national minimum wage.[27]

In 2009, contact centre workers in Scotland Yard's control were being forced to record every visit they made to the bathroom during their working hours. Workers reported they felt immensely offended and humiliated. Superintendent Russ Hanson-Coles claimed forcing the phone operators to record their bathroom visits as “code three” deterred employees from taking unnecessary breaks.[28] The term code three refers to any type of unscheduled break whether that being a bathroom visit or the need to fill up one's water bottle outside of their scheduled rest breaks.[29] Furthermore, the Workplace (Health, Safety and Welfare) Regulations 1999 do not discuss access to restrooms for workers but rather focus on the standard of sanitary conditions bathrooms are required to be kept.[30]

Health issues

Inability to access a bathroom when necessary has caused health issues such as urinary tract infections, kidney infections, and digestive problems which can later develop into severe health problems.[31] Inadequate access to the use of a bathroom when required can lead to substantial problems for people who have prostate problems, going through menopause, or are menstruating for instance.[32]

Call centre workers are commonly encouraged to drink fluids regularly to continue prolonged voice use.[33] However, these employees are generally deprived from accessing a bathroom when they need to.[34] Also, drivers such as bus and truck drivers on a timed schedule have been known to have no access to a bathroom and thus have a high risk of coming in contact with bladder and stool health problems. Furthermore, the lack of access for a driver may result in a lack of concentration on the road, which is a public safety concern. The need to access a bathroom becomes a larger issue than that for the individual who is being immediately deprived.[35]

In 2002 a “Loo Breaks Study” conducted with 200 nurses at St Mark’s Hospital, London found that over 75 per cent of the workers had difficulty passing stool at work given the high demand of the job disallowed them to take bathroom breaks. A third of the employees stated that management was regulated in such a way to prevent workers from taking loo breaks during their working hours.[36] The study also found that half of call centre workers postponed taking toilet breaks during working hours due to management restrictions placed on them.

Categories of affected workers

Categories of employment where workers have been documented to be deprived of access to a bathroom include:[37]

  1. Office workers
  2. Transport workers
  3. Professional drivers
  4. Retail staff
  5. Enforcement officers: police, traffic wardens etc.,
  6. Nurses and other hospital staff
  7. Call centre and telesales staff
  8. Construction workers
  9. Factory workers
  10. Casino workers
  11. Bar, restaurant and hospitality staff
  12. Teachers
  13. Farm workers
  14. Security workers
  15. Radio operators in emergency control rooms
  16. Tower crane operators
  17. Rail infrastructure workers
  18. Postal workers
  19. Support workers
  20. Immigration officers
  21. Firefighters
  22. Refuse collection workers
  23. Factory production operators
  24. Gas maintenance engineers
  25. Frontline ambulance staff
  26. Civil enforcement officers (Traffic wardens)
  27. Dental nurses

References

  1. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  2. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  3. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  4. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  5. ↑ Employment Relations Act 2000 (NZ), s 20.
  6. ↑ "Break Entitlements" Employment New Zealand <http://employment.govt.nz/er/>
  7. ↑ Employment Relations Act 2000 (NZ), s 69ZE; and Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13)
  8. ↑ "Break Entitlements" Employment New Zealand <http://employment.govt.nz/er/>
  9. ↑ "Regulations (Standards - 29 CFR) - Table of Contents" United States Department of Labor <https://www.dol.gov>; and Jon Hyman "When You Gotta Go, You Gotta Go: The Right to Workplace Bathroom Breaks" (11 September 2013) Workforce <http://www.workforce.com>
  10. ↑ John B. Miles "Memorandum for" Regional Administrators State Designees" United States Department of Labor <https://www.dol.gov>
  11. ↑ Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13)
  12. ↑ Jon Hyman "When You Gotta Go, You Gotta Go: The Right to Workplace Bathroom Breaks" (11 September 2013) Workforce <http://www.workforce.com>
  13. ↑ Zwiebel v. Plastipak Packaging, Inc., 2013-Ohio-3785 (3rd Dist) at [para33]
  14. ↑ Zwiebel v. Plastipak Packaging, Inc., 2013-Ohio-3785 (3rd Dist)
  15. ↑ Jon Hyman "When You Gotta Go, You Gotta Go: The Right to Workplace Bathroom Breaks" (11 September 2013) Workforce <http://www.workforce.com>
  16. ↑ "Is it legal to restrict workplace bathroom visits to a certain number a day??" Human Resource Blog <http://www.humanresourceblog.com>
  17. ↑ "Is it legal to restrict workplace bathroom visits to a certain number a day??" Human Resource Blog <http://www.humanresourceblog.com>
  18. ↑ “Under the federal FLSA or Fair Labor Standards Act, employees must be paid for any breaks shorter than 20 minutes. This would include bathroom breaks. This law applies to most employers in the U.S.” "Is it legal to restrict workplace bathroom visits to a certian [sic] number a day??" Human Resource Blog <http://www.humanresourceblog.com/?s=Is+it+legal+to+restrict+workplace+bathroom+visits>
  19. ↑ "Is my employer allowed to dock my pay for taking loo breaks?" TUC Work Smart <https://worksmart.org.uk>
  20. ↑ Employment Relations Act 1996 (UK), s 13(1)
  21. ↑ "Is my employer allowed to dock my pay for taking loo breaks?" TUC Work Smart <https://worksmart.org.uk>
  22. ↑ Do I need to ask permission to use the toilet? TUC Work Smart <https://worksmart.org.uk>
  23. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  24. ↑ Do I need to ask permission to use the toilet? TUC Work Smart <https://worksmart.org.uk>; and "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>; and "'Toilet tax' hits call centre staff, says MP" (6 November 2014) BBC News <http://www.bbc.com/news>
  25. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  26. ↑ "Toilet breaks are a worker's right, minister tells MPs" (20 November 2014) BBC News <www.bbc.com/news>
  27. ↑ "Toilet breaks are a worker's right, minister tells MPs" (20 November 2014) BBC News <www.bbc.com/news>
  28. ↑ "Police must record toilet breaks" (27 July 2009) BBC News <www.bbc.com/news>
  29. ↑ "Police must record toilet breaks" (27 July 2009) BBC News <www.bbc.com/news>
  30. ↑ (Health, Safety and Welfare) Regulations 1992 (UK), s 20.
  31. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  32. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  33. ↑ "'Toilet tax' hits call centre staff, says MP" (6 November 2014) BBC News <http://www.bbc.com/news>
  34. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  35. ↑ "Give us a (Loo) break!" (8 March 2010) Trade Union Congress <https://www.tuc.org.uk>
  36. ↑ "Hazards 81 extended briefing: Toilet breaks" Hazards Magazine <http://www.hazards.org>
  37. ↑ "Hazards 81 extended briefing: Toilet breaks" Hazards Magazine <http://www.hazards.org>

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