So background, I have IBS and sometimes have to go the bathroom multiple times per work day. My supervisor doesn’t believe I am legitimately using the bathroom, so he said today at the end of the day today if I don’t send him a picture or otherwise prove that I used the bathroom, I will lose 15 minutes of paid time. What sort of recourse do I have?
Let’s play spot the legal issues. I see three.
1. Disability Discrimination
Irritable Bowel Syndrome is an ADA-protected disability. No questions asked.
An employer faced with an individual with a non-obvious medical issue
is well within its rights to require that the employee submit reasonable
documentation about the disability and its limitations before engaging in the
interactive process and considering reasonable accommodations. The request,
however, must be for reasonable documentation—only that documentation needed to establish that the employee has an ADA disability, and that the
disability necessitates a reasonable accommodation. It would unreasonable, for
example, to request a person’s complete medical records because they are likely
to contain information unrelated to the disability at issue and the need for
the accommodation. There is no situation in which pictures of an employee’s
excrement is reasonable documentation of an employee’s disability.
Additionally, it is an appropriate reasonable accommodation to permit
an employee with a disability to take periodic breaks necessitated by the disability.
Denying bathroom access to an employee with IBS would be an unlawful denial of
such an accommodation.
2. OSHA
OSHA 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.” Moreover, 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.”
3. FLSA
Under the FLSA, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The Department of Labor includes “restroom breaks” as an example of these short-duration rest period 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 an employee’s pay treat them like hourly employees, which, in turn, destroys the exemption for that job class.
Illegalities aside, it just plain creepy and gross to require an employee (disabled or not) to snap and send pics of their poo. There is no situation, EVER, in which an employee should be asked for photos of poop, period. And, if you insist upon it, you might be the worst employer of 2019.
(Thanks to Suzanne Lucas for bringing this story to my attention on her Evil HR Lady Facebook group.)