Q: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day. As a result, she uses far more than her normal breaks allow. She has provided documentation that a severe medical condition in her kidneys causes this predicament. Do we have to allow this? And if we do, can we at least count the additional trips to the bathroom as FMLA leave?
A: Before you wonder whether this actually is a serious question, it is! In fact, last month, a court allowed a jury to consider an employee's claim that her employer retaliated against her in violation of the ADA after she requested to take frequent bathroom breaks.
In this situation, Bonnie suffered from “interstitial cystitis," which is an inflammatory bladder condition causing frequent trips to the bathroom -- as often as every 20 minutes. Bonnie claimed that, while she was in the bathroom, her supervisor would intentionally call her at her desk, and when she wouldn't answer, he would send another employee into the bathroom looking for her. Upon Bonnie's return to her desk, her boss allegedly would “shake his head disapprovingly." After a short leave of absence, Bonnie’s desk was moved and her duties reassigned. Days later, she was terminated.
The court declined to flush Bonnie's ADA retaliation and reasonable accommodation claims, finding that she could establish that she had a disability and that there was ample evidence for a jury to decide that her request for an accommodation was a deciding factor in her termination. Akerson v. Pritzker (pdf)
Bonnie's claim got me thinking (in a nerdy FMLA kind of way): could the employer have assessed FMLA leave for these bathroom trips? It seems the answer is yes, since the FMLA regulations do not limit the size of intermittent FMLA leave, and it appears that the employee could show that these bathroom trips are medically necessary. This situation is similar to the facts in Collins v. U.S. Playing Card Co., where the court determined that a diabetic employee's requests for breaks of a few minutes at various points during the work day to get something to eat could qualify as intermittent leave under the FMLA.
I don't want to encourage employees' unfettered access to the loo, but in light of the Akerson and Collins decisions, the employee's bathroom time in these circumstances arguably would be protected by the FMLA.
Insights for Employers
When counting bathroom time against an employee's FMLA entitlement, only do so if the frequency and duration extends beyond the employee's normal lunch and break periods.
Don't be fooled by the lazy employee. If an employee has notified you of a medical condition causing their unusually frequent or lengthy trips to the bathroom, that's one thing. But if not, treat it first as a performance-related issue, and communicate with the employee about your expectations and how they're missing the mark. Suzanne Lucas (aka the "Evil HR Lady") has some great guidance on how to deal with an employee who makes too many trips to the bathroom, including a suggested dialogue with your employee.
But Don't be Pee Brained! I have a tough time with some of the facts in Bonnie's case. Here's why: 1) What's illegal about asking an employee to check on another if the former has been away from her work station? 2) I'd be interested to know what a "disapproving" head shake looks like when the boss uses it to communicate his disappointment for using the the bathroom too long. Is there a definition somewhere? And how does that differ from "you're playing your music too loud in your cubicle" head shake, or "your lunch smells" head shake. All kidding aside, though, this court decision reminds employers of how easy it is to get tripped up by a retaliation claim, especially where a termination decision is temporally related to the request for accommodation. Here, even though the employer claimed it had taken steps to terminate Bonnie's employment prior to her request for bathroom breaks, it lacked documentation proving so. This was particularly difficult for the court, as it noted “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.” When it comes to an employee's medical condition, employers must take every request seriously, and it's best to keep our comments (and mannerisms) to ourselves!