OSHA TAKES CONTROVERSIAL POSITIONS ON TOILET ISSUES AT WORK

Written on .

Many employers may not realize that the Occupational Safety and Health Administration (OSHA) regulates in some ways the use of toilet facilities at work. There are at least three important issues, the number of toilets, access to toilets, and now, the even more controversial issue of transgender bathroom access.

There are OSHA general industry requirements for the provision of toilet facilities at 29 CFR 1910.141(c). These requirements state that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with Table J-1 [printed below] of this section. The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished."

Number of Employees Minimum Number of Water Closets

  • 1 to 15 1
  • 16 to 35 2
  • 36 to 55 3
  • 56 to 80 4
  • 81 to 110 5
  • 111 to 150 6
  • Over 150 Provide one additional toilet for each 40 employees

OSHA also weighs in on the controversial issue of access to the toilet facilities. In its most recent pronouncement on the subject, OSHA states that it ". . . has consistently interpreted this standard to require employers to allow employees prompt access to sanitary facilities. Further, employers may not impose unreasonable restrictions on employee use of toilet facilities." In the event employees are not provided reasonable access to the toilet facilities, OSHA can argue that those toilets have not been made "available" to employees, although OSHA cases challenging such denial of access are rare.

This newsletter has previously pointed out how the federal government is moving very rapidly on transgender issues [see February, 2015 newsletter]. The latest OSHA guidance on transgender employees and toilet access is entitled "Best Practices - A Guide to Restroom Access for Transgender Workers." It states that authorities on gender issues counsel that it is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their "gender identity." "Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out. . . ." It goes on to state: "For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms."

The "best practices" advocated by OSHA also provide additional options, which employees may choose, but are not required, to use. These include:

  • Single-occupancy gender-neutral (unisex) facilities; and
  • Use of multi-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

OSHA also advises under the model practices that employers not require employees to provide any medical or legal documentation regarding their gender in order to access the restroom that corresponds to their gender identity.

While the OSHA requirements for the provision of toilet facilities have been in place for some time, and are enforceable, the new transgender "best practices" are of doubtful enforceability as far as OSHA is concerned. However, the EEOC has taken the position that denying a transgender employees access to a restroom consistent with their gender identity constitutes sex discrimination under Title VII.

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

supreme court building, outdoors, blue sky

Supreme Court Reinstates Stay of OSHA Vaccine Mandate

In a 6-to-3 decision published January 13, 2022 the U.S. Supreme Court has stayed implementation of an Emergency Temporary Standard (ETS)...
viles of vaccines indoors

The Supreme Court Stays the OSHA ETS; CMS Vaccine Mandate for Healthcare Workers Goes Forward

Yesterday, we received decisions from the US Supreme Court on the status of the OSHA COVID-19 ETS and the CMS vaccine mandate for healthc...
number 15 on a brick wall

Federal Contractor Minimum Wage Final Rule Requires $15.00 Minimum Wage

On November 22, 2021, the Department of Labor's (DOL) Wage and Hour Division issued a final rule implementing President Biden's Executive...
covid vaccine viles

Appeals Court Lifts Stay to OSHA Vaccination ETS (Updated)

On Friday night, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the stay of OSHA's Emergency Temporary Standa...
walkout, outdoors, red hats

Workplace Walk-outs and Strikes This Year Have More than Doubled

Unions have engaged in over 240 major strikes this year, doubling the number from last year. Some have labeled the situation "strike-tobe...
Federal business building, indoors

Federal Contractors Soon to Be Required to Verify They Have Affirmative Action Plans

In general, companies that do business with the federal government are required to have affirmative action plans. Such plans address how ...

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts


Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© 2020 Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM