April 23, 2003

Professor Marc Linder
College of Law
University of Iowa
Iowa City, IA 52242

Dear Mr. Linder:

This is a further response to your letter to me of December 10, 2002. You asked the following questions about the impact of OSHA's April 6, 1998 memorandum to the OSHA Regional Administrators concerning the interpretation of OSHA's sanitation standard for general industry 29 CFR §1910.141(c)(1)(i) as it applies to workers' use of toilet facilities. We apologize for the delay in responding.

Question: I hear criticism from managers who say that the OSHA interpretation stating that employers have to let workers go to the bathroom when they need to go makes it impossible for management (without risking a citation) to police abuses by employees who say they have to void, but are really faking and just want to loaf. How would you respond to employers who say that OSHA has in effect deprived them of their right to discipline slackers?

Response: The interpretation was written as guidance for OSHA compliance officers in evaluating situations concerning workers' complaints about access to toilet facilities when the workers needed to use them. The interpretation should not be seen as interfering with management's right/ability to discipline workers who are violating legitimate work rules. As the April 6, 1998 interpretation states, an employer is not prohibited from having reasonable restrictions on access to toilet facilities. The interpretation requires OSHA's compliance officers to evaluate employer restrictions on a case-by-case basis, giving careful consideration to such factors as the nature of the restriction, including the length of time that workers are required to delay bathroom use, and the employer's explanation for the restriction.

Question: In retrospect would it have been simpler to have issued, instead of an interpretation prescribing a performance (reasonableness) standard, one that mandated a quantitative standard requiring employers to let workers go to the bathroom at least every x minutes or hours?

Response: No. The "reasonableness" criterion is consistent with the generally worded requirement in §1910.141(c)(1)(i). Furthermore, it would be difficult to set a specific interval for breaks, because the need to use toilet facilities varies from person to person and even with respect to the same person. Some of the variables that can affect a worker's need to urinate are: diet, stress, pregnancy, prostate health, other medical conditions, medication use, weather temperature (working in a cold environment makes people need to urinate more frequently), and the amount and type of fluid consumed.

Also, in some workplaces the nature of the work or the tasks being performed may require constant worker coverage/attention. In such situations employers need flexibility in developing procedures that will allow all of their workers access to toilet facilities as needed. A specific schedule for breaks might not allow the flexibility needed to address all types of work situations.

Question: Do you have some sense of what the effect of the interpretation has been? Has it produced greater compliance by employers? More complaints by workers? More citations issued by OSHA? Or are there other ways of determining what the effect has been?

Response: Within the first year after issuing the interpretation, articles appeared in several newspapers around the country, and OSHA's office in Washington, DC received calls from various employer and employee groups asking questions about the interpretation. We believe that the interpretation has produced a greater awareness and sensitivity about this issue among the employer community, as well as providing direction to OSHA staff in responding to complaints and questions regarding this issue.

Since we have not asked our area offices to keep track of employee complaints regarding §1910.141(c)(1)(i) and employee access to toilet facilities, we have no way of knowing if the interpretation itself has produced more complaints. But, we asked our area offices to send copies of all citations issued to employers for failure to allow employee access to toilet facilities. By the end of 2002, OSHA had issued only about twelve such citations.

In discussions with our area offices, we have found that the interpretation has helped the OSHA Area Directors and compliance officers encourage agreements between employers and workers on how to provide needed access to toilet facilities. Issuing a citation does not in itself resolve the problem. Therefore, the Area Directors and compliance officers first encourage employers and employees to work together to see how they can resolve their differences and create a system/procedure that will work in that particular workplace for that specific employer and employee(s).

Question: Is it lawful for an employer to charge employees to go to the bathroom or to make it unpaid time?

Response: Questions of pay for rest/bathroom breaks are not within OSHA's jurisdiction. The Employment Standards Administration, Division of Wage and Hour, has provided guidance at 29 CFR §785.18 (copy enclosed), but you may wish to contact that agency directly. State labor laws may also cover rest/bathroom breaks. The Wage and Hour Division office closest to you is the Des Moines District Office:

U.S. Department of Labor
Employment Standards Administration
Wage & Hour Division
Federal Building
210 Walnut Street, Room 643
Des Moines, IA 50309-2407
Telephone: (515) 284-4625
Fax: (515) 284-7171

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters/memoranda explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any additional questions, please contact the Directorate of Enforcement Programs at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs

Enclosure