Question
An employee is spending an excessive amount of time in the bathroom. The employee takes 8 to 10 bathroom breaks a day, which can range anywhere from 10 to 20 minutes per break. This amounts to at least 1 or 2 hours a day that this employee is getting paid to be in the bathroom. What can we do? Are we allowed to talk to the employee about this?
Answer
While employees must be given reasonable access and time to use the restroom, employers indeed have rights when an employee's breaks become excessive or otherwise violate the company's break time policy. An employer can expect that its employees will be performing job duties and not spending excessive time engaging in non-work duties during work time.
Thus, an employee who, absent a disability, is excessively taking bathroom breaks that are disruptive to productivity can be addressed from a performance management standpoint. An employer should address the issue with an employee just as it would with any other employee who was not meeting the employer's reasonable performance expectations. For example, what would the employer do if an employee were spending excessive time taking personal telephone calls each day? If disciplinary action would be warranted in such a situation, the employer may proceed with it.
That said, if an employee indicates that his or her disability is causing the employee to be in the restroom for lengthy periods of time, the employer should engage the employee in an interactive discussion to determine whether reasonable accommodation can be made without undue hardship, pursuant to the Americans with Disabilities Act. The Job Accommodation Network (JAN) offers excellent information and ideas for employers, and restroom issues are specifically addressed on JAN’s website.