Oct 15

Bathroom Breaks: To Pee or Not to Pee?


To pee or not to pee? That’s the question for California employees. Why? California law neither allows nor prohibits bathroom breaks. The average human being urinates six to eight times, or once every three to four hours, over a 24-hour period – and not necessarily during a meal or rest break. If you’re an average human being, you face an unenviable choice: either hold it all day and have an accident at your desk, or go to the can and get canned. Fortunately, California law could entitle an employee with a disability resulting in incontinence to a bathroom break as a reasonable accommodation.

Why the Restroom Isn’t for Resting

Surprisingly, no law prohibits employees from taking bathroom breaks or prohibits employers from firing employees for taking them. The California Industrial Welfare Commission’s Wage Orders state that employers must provide “[s]uitable resting facilities…in an area separate from the toilet rooms…”1 Similarly, the California Division of Occupational Safety & Health prohibits employees from storing or consuming food or beverage in a bathroom.2 Conclusion: bathroom breaks on the one hand and rest and meal breaks on the other are different entitlements.3

That doesn’t mean an employee can extend a rest break by going to the bathroom.4 In California, an employer can limit how long an employee can be away from his work station. Thus, an employer can fire an employee who uses the cover of a bathroom stall to text his friends. The catch is that an employer can’t know what employee is doing in the bathroom – at least not without committing a serious crime. That’s because California law prohibits an employer from recording an employee in a bathroom (without a court order) or installing or maintaining a two-way mirror in the bathroom.5

From the Halls of Montezuma’s Revenge: Bathroom Breaks for Incontinent Employees

The law of bathroom breaks is less murky when an employee has a disability that causes him to become incontinent. Common physical disabilities that can cause incontinence include pregnancy,6 diabetes,7 and irritable bowel syndrome.8 Similarly, some antidepressants can cause incontinence even if depression doesn’t. In California, every employer with a least five employees must reasonably accommodate an employee with a disability.9 Even a single failure to accommodate a mental or physical disability is actionable and can result in a gigantic award of damages and attorney’s fees.10

That’s what happened in A.M. v. Albertsons, LLC, 178 Cal.App.4th 455 (2009). In A.M., cancer treatment caused an Albertson’s checker to suffer from dry mouth, requiring her to drink lots of water. That, in turn, caused her to urinate every 45 minutes. Most of her managers accommodated her trips to the bathroom, but one manager, unaware of her disability, wouldn’t. As a result, she lost control of her bladder in front of customers. The jury returned a verdict that caused Albertson’s a Maalox moment: $12,000 for lost wages, $40,000 for future medical expenses, and $148,000 for emotional distress.

In some cases, however, an incontinent employee’s continual bathroom use can become an undue hardship to an employer.11 The question of whether an accommodation is an undue hardship is, however, fact-specific, turning on a number of factors, including the nature and cost of the accommodation, the employer’s financial resources, and the number of employees at the work site. Thus, whether an employer would suffer undue hardship if he were to allow an employee with a disability resulting in incontinence to take extended or additional breaks will vary from case to case.

  1. IWC Wage Orders §13(B). 

  2. GISO §3368(b). 

  3. DLSE Enforcement Policies and Interpretations Manual §45.3.4. 

  4. Id. at § 

  5. Lab. Code §435(a)(recordings); Pen. Code §653n (two-way mirrors). 

  6. Sanchez v. Swissport, Inc., 213 Cal.App.4th 1331, 1340 (2013). 

  7. Erjavac v. Holy Family Health Plus, 13 F.Supp.2d 737 (N.D. Ill. 1998). 

  8. Maziarka v. Mills Fleet Farm, 245 F.3d 675 (8th Cir.2001). 

  9. Gov. Code §12940(m). 

  10. A.M. v. Albertsons, LLC, 178 Cal.App.4th 455, 464-465 (2009). 

  11. Gov. Code §§12926(u); 12940(m). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.