Ask The Lawyer, “Fired For Excess Bathroom Breaks?”
QUESTION: I noticed several weeks ago that one of our employees seemed to be in the bathroom at least once, if not twice, every hour. His frequent absences from his desk have been an irritation to some of his co-workers, who can’t find him when they need him. I spoke to the worker, to discover if there was something going on. He told me that medication he takes for a heart condition flushes fluids from his system – so he needs frequent restroom visits. I’m sympathetic to his predicament, but I told him we cannot have him popping up from his desk every half hour or so. I told him if he couldn’t limit his breaks to no more than two breaks before lunch and two breaks after lunch, he would be terminated. He limited his bathroom use for a few days, then turned in his notice, stating he had been “constructively discharged” by our refusal to accommodate the side effects of his “necessary medication.” A few weeks later he filed a lawsuit against the company claiming he had been denied a “reasonable accommodation” under the Americans with Disabilities Act. He never told me he had to have the medication, or that he had a disability. Is it so unreasonable to ask workers to stay at their desks for at least one hour at a stretch?
ANSWER: You could be on the losing end of a lawsuit. Under the Americans with Disabilities Act, employers are required to provide workers with disabilities a “reasonable accommodation” that will allow them to continue working, as long as the accommodation won’t impose an undue hardship on the employer. An employee’s request does not have to be explicit: If the information available to the employer is enough to indicate that the employee may have a disability that requires an accommodation, it is up to the employer to seek clarification.
Your employee gave you two pieces of information that should have indicated he might be disabled and seeking an accommodation: He told you he had a heart condition, and he told you that the medication he takes for the heart condition required him to make extra bathroom visits. Under the law, a heart condition can be regarded as a disability and, separately, side effects from the use of necessary medication to treat the underlying condition may be regarded as a disability requiring an accommodation.
Because you refused to consider anything but limiting breaks to no more than four per day (excluding lunch), your worker may have felt he had two choices: He could take the medication and be fired for visiting the rest room too often, or he could skip the medication and risk consequences to his health. (Medication to flush fluids from the system are often given to people with congestive heart disease, to prevent fluids from building up in their lungs, which can make breathing difficult and, in severe cases, lead to death.)
A “constructive discharge” occurs when, under the circumstances, a worker really has no choice but to quit. If your inflexibility on bathroom breaks meant the worker had to put his health at risk, or be fired – he really did not have a choice in the matter.
What should you have done? First, you could have asked the worker if he was requesting an accommodation for a disability. Then, you could have discussed ways you could work together to accommodate the effects of his medication while ensuring he was still able to meet his job duties. While employers should avoid asking workers, “What’s wrong with you?” they may ask for a doctor’s note describing the disability in general terms and the accommodation needed.
Trying to work with your employee to find a solution that fits isn’t just a case of being nice: An “interactive process” is required by law. Both the employer and the employee must work together to discover if there is an accommodation that is reasonable – one that that will enable the employee to do all the essential functions of his or her job, but that will not that will not impose undue hardship on the employer or co-workers. Asking co-workers to take over part of an employee’s job, for example, is not a reasonable accommodation. The employee must also be willing to compromise, and accept an accommodation that will meet his or her needs, even if it’s not his or her first choice. Even if you could not reasonably accommodate your worker’s need to visit the rest room every half hour, your failure to engage in this interactive process was probably an independent violation of the ADA.
Without knowing more of the facts of this case, we can’t say definitively whether you violated the ADA – but we highly recommend talking to a lawyer who specializes in employment law, if you have not already done so.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law