Frequent urinarion at work and disability discrimination in Texas

Frequent urination can be caused by a number of medical conditions. Frequent restroom breaks can cause problems with the employer who wants the employee to be at his or her work station during the work day. In addition to the physical discomfort, it can be emotionally uncomfortable as co-workers or managers make comments about the situation. One of job where this is often an issue is call center employees. The employer ties them to their phones each minute of their schedule. There have been many lawsuits by call center employees under the Americans with Disabilities Act, the Family Medical Leave Act and other employment laws on this issue.

Today’s post will deal with some of the legal protections available to Dallas and Fort Worth employees in these situations. This post will address the issue from the standpoint of call center employees; but the same information is generally applicable to other positions where their work time is tightly controlled. It also applies to other frequent restroom use conditions related to other parts of the digestive system. Medical conditions, such as IBS, can results in frequent need for restroom breaks for bowel-related issues.

Frequent urination in call centers

Call center employees are particularly exposed to conflicts over physical impairments that require frequent restroom breaks due to the nature of the work and the employer’s ability to monitor the work. Employers tightly control call center employees under a number of metrics, many of which relate to schedule adherence. The employer is easily able to monitor the employee’s time because the employee must log into his or her phone.

It is understandable for call centers to focus on these metrics. Call centers make their money through employees logged into their phones and taking calls during their shifts. They schedule employees based on expected and actual call volumes. Often there are service requirements that require the call center to answer within a certain length of time. As a result of this focus, call centers can sometimes go overboard tying their employees to their phones. A reasonable employer understands some employees need to use the restroom more frequently than lunch and two fifteen minute breaks. However, that isn’t always enough and employees need to know how to protect themselves.

Employment laws that relate to frequent restroom breaks at work

Few meaningful laws in Texas protect employees; but some of these laws relate closely to restroom breaks at work and employees should know their rights. These laws give employees certain rights, including the right to file suit to recover for wrongful discharge. This section will discuss these laws and the third section of this post will discuss what employees should and should not do to protect their rights under these laws. Employees who require breaks from work for other medical conditions enjoy other protections. Do not assume what applies for frequent restroom breaks necessarily applies to other medical-related work breaks.

Occupational Safety and Health Act (OSHA)

Many employees working in offices do not know much about OSHA or think it relates only to manufacturing jobs. OSHA covers office workplaces as well and provides important regulation on this issue. Regulations require employers to make restrooms available to employees and for employees to have use of them. OSHA takes the view that restroom use is not a privilege but a basic right and health necessity. OSHA regulations are clear that employers may set reasonable restrictions on restroom breaks but they must be reasonable.

That allows employers to curb abuse, so employees cannot hide out in the restroom to avoid calls, but not to prevent an employee from normal use of a restroom. OSHA regulations also recognize that even without a diagnosed medical condition some employees have smaller bladders, greater sensitivity to the need to urinate, or greater fluid intake and need to use the restroom more frequently than others. OSHA is rarely used by employees to protect their job but it is an option available to employees, particularly those who do not have a diagnosed medical condition that results in frequent urination.

Fair Labor Standards Act (FLSA) and Texas Payday Law

The FLSA and Texas Payday Law regulate minimum wage and overtime protections for employees. These laws regulate how employers pay employees and what kind of deductions can be made from an employee’s paycheck. Call center associates are almost always hourly employees subject to these laws. FLSA regulations issued by the Department of Labor require employers to pay employees for break periods lasting twenty minutes or less. That almost always means restroom breaks are going to fall into this category. Employers cannot dock employees for brief restroom visits. If an employee is being docked for this time and the restroom breaks are for normal restroom use (not hiding out to make phone calls or avoid work calls) then the employee has remedies to receive pay for this time.

Family Medical Leave Act (FMLA)

FMLA typically does not apply to this situation but it has been invoked by both employers and employees so it is worth noting what your employer can and cannot do under FMLA. The law permits employees protected unpaid leave for certain medical conditions. FMLA leave is often taken in one continuous period but FMLA also protects the right to intermittent leave, in which the employee takes short leave periods intermixed with the employee’s regular work schedule. Intermittent leave can be on a regular basis, such as leaving early on a day for a weekly physician’s visit, or on an as-needed basis, such as a condition that requires treatment only upon aggravation of the condition.

FMLA leave is a powerful protection, especially for intermittent leave. Under FMLA, an employer may not take adverse action against the employee for using intermittent leave for a valid purpose so it would protect the employee from disciplinary action for not meeting schedule metrics due to the restroom breaks. Employees have attempted to request intermittent leave under FMLA for frequent restroom breaks for just this reason. Employers have also suggested employees request FMLA leave for this purpose to protect the employee. However, FMLA protects unpaid leave so some employers have used FMLA as a way to give the employee frequent restroom breaks but not pay them for the time as unpaid FMLA leave and skirt around the FLSA protections for paid break time.

FMLA does not apply to restroom breaks

The courts are very clear that FMLA does not apply for restroom breaks. It is not the kind of leave time Congress intended the law to protect, even for intermittent leave and even if the employer thinks it is a compromise to give the break time but not pay for it. Neither employer nor employee can invoke FMLA for frequent restroom breaks. Many employees have tried to bring claims under FMLA for intermittent leave for restroom breaks. These claims are not successful and the law has been clearly decided on the issue.

Disability discrimination under the Americans with Disabilities Act (ADA) and the Texas Labor Code

If frequent restroom breaks are related to a medical condition, including a side effect of medication, then the best protections for an employee may fall under the ADA and the state version of the ADA, which is found in the Texas Labor Code. The ADA broadly protects employees who have a medical condition that qualifies as a disability under the ADA. Two key issues exist in determining whether the ADA protects an employee: whether the medical condition is a disability and whether the ADA protects the employee.

Thanks to the 2008 amendments to the ADA, the ADA now broadly defines disabilities to include any physical or mental impairment that substantially limits a major life activity. Even a non-serious condition like a small bladder can fit within the ADA definition of a physical impairment; but the employee must also prove that the impairment substantially limits a major life activity, such as walking, standing, or thinking. If a urinary tract condition prevents you from engaging in common activities then you likely could prove your physical condition is a disability. On the other hand, if the impairment is merely an inconvenience then it probably is not an ADA disability.

If your condition is a disability then you must also show that you qualify for protection under the ADA

Employees are protected when a “qualified individual” able to perform the job’s essential functions with or without reasonable accommodation. For call center employees, regular attendance and the ability to take calls would certainly be essential functions of the job. The extent that brief restroom breaks interferes with the essential nature of taking calls is a disputed issue in ADA lawsuits. An employee can request an accommodation for the disability and if it is provided then the employee must be able to perform the essential functions of the job with the accommodation.

The ADA permits employees to request an accommodation, such as written permission to use the restroom beyond the normal two breaks and lunch, or moved to a desk closer to the restroom so the employee spends less time away from the phone. The employer must provide a reasonable accommodation so long as the employee meets the other requirements of the ADA.

Claims brought under the ADA typically appear in two ways

1. If the employee meets the ADA’s requirements and requests a reasonable accommodation, the employee can pursue a claim when the employer fails to engage in the required process to discuss accommodations and/or fails to provide a reasonable accommodation. 2. Where the employee is performing the essential functions of the job without the need for an accommodation; but the employer applies a higher standard to the employee than other employees. These latter claims allege the employer took disciplinary action it would not have for other employees with similar performance.

ADA claims for restroom breaks often lose because employees fail to produce sufficient evidence of each element of the claim. Either type of claim requires proving the employee has a disability and performed the essential functions of the job with or without a reasonable accommodation. (Or would have performed the essential functions had a reasonable accommodation been provided.) Failure to accommodate claims require evidence that a request occurred and the employer failed to offer a reasonable accommodation. A case decided last week in Michigan (Sanders v. Judson Center) failed because the employee could not prove that her frequent urination was a disability. The court agreed it was a physical impairment; but the plaintiff failed to produce sufficient evidence that the need to urinate frequently substantially limited a major life activity.

Timing of reasonable accommodation request

What often makes these claims particularly troublesome to prosecute is that employees commonly only notify their supervisor of the medical condition causing the need for frequent restroom breaks after schedule-based performance scores have put the employee on a corrective action plan. That creates a defense for the employer that the medical condition exists as a manufactured excuse to avoid disciplinary action. This skepticism magnifies when the employee has other performance issues not explained by a medical condition.

Taken as a whole it seems more likely that the restroom breaks are less of an issue in the employee’s failure to meet standards than overall performance problems related to the job duties. It also means the employer likely had a legitimate explanation for disciplinary action. Even if the employee can also prove the disability issue it limits how much the employee can recover.

What a call center employee should do to protect his or her job and any potential claims

You do not have to work very long in a call center to know it is grueling work. Schedule-based metrics are a big part of performance evaluations. The call center environment and management structure is a poor environment for somebody who needs schedule flexibility. Often management is ill-equipped to deal with these kinds of medical issues in a professional and lawful manner. Be proactive about the situation and your needs. That means:

  • Talk to your physician about what documentation he or she can provide and what accommodations may be best;
  • Talk to human resources about what documentation you need to provide and clearly request to discuss accommodations;
  • Keep an open dialog with human resource as things change with your medical condition, especially if it worsens;
  • Make sure any documentation your physician provides explains the medical issues and how it substantially limits major life activities;
  • Document all interactions regarding your medical condition and any accommodations;
  • Keep copies of performance reviews, write ups, awards, feedback emails and any other documents that reflect your performance;and
  • Talk to an employment attorney when problems first arise, don’t wait until you have lost your job.

Fort Worth and Dallas employment attorney for disability discrimination in Texas

All aspects of your performance may be part of a defense to claims of disability discrimination. You will have to be very careful that you perform at or above expectations for your role. Make it difficult to prove that you were a bad employee. If you struggle to perform in the call center environment then it may be worthwhile to reevaluate your career path. Call center work isn’t for everybody.

When requesting accommodations keep in mind that your employer only needs to offer reasonable accommodations. They may not be the accommodations you prefer. Common reasonable accommodations include allowing you greater flexibility for restroom breaks, moving you to a desk closer to a restroom, adjusting your break schedule to facilitate the restroom breaks and adjusting scheduled phone time. These are common options but may not be reasonable for you or your employer. You need to be flexible with your employer in reaching an agreement on accommodations.

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