My company now requires that we ask to go to the bathroom. Is this legal?

Question

I work in a call center in the US. We have call center software that tracks our time in call, between calls, lunches, etc, which management is able to see at any time. We take back-to-back calls all day. Normally, to avoid messing up our numbers (spending too much time in one mode or another) employees will change their state into "Miscellaneous" mode to finish up whatever they were doing. This is often used to go AFK for any reason, including getting water, or going to the bathroom. It was at our discretion, but we were advised to let a supervisor know when we would do this.

Typically I could handle bathroom visits and getting water during my scheduled breaks, with the occasional need to do so outside of those times. However, I've noticed coworkers really abusing this "step away whenever you want" policy. As such, management now requires we ask permission to do so. If our total time doing any miscellaneous activity goes beyond 30 minutes a week in total, we are subject to disciplinary action. This is 6 minutes a day for basic human needs. I have no doubt this was motivated by time theft, but this is also affecting the morale of those of us who did not abuse the previous system. As a loop-hole, they have told us not to say we are using the bathroom, but to instead ask to "step away for a moment," no doubt for plausible deniability.

My question is, can they really enforce this? Can they threaten our employment for taking more than 6 minutes a day to use the bathroom when it doesn't line up with a break? This seems highly suspect and unofficial. To be honest, I think it is an intimidation tactic to keep us scared and keep us in line. I have not spoken to HR about this yet, as I don't know how tied-in they are with this new policy.

Edit Feb 2, 2020: To clear up some confusion here, the previous method of going to the bathroom during non-break periods was just a statement, with no requirement to ask, just communicate. We all did this without a problem. The new policy is that we ask permission, which implies they can deny permission. This is also assuming that a supervisor is reachable during the short time where we even have a moment between calls. Now we must wait for approval, often affecting our performance metrics.

IMO lumping bathroom breaks and any extra time needed to complete a work-related task together in the same "miscellaneous" state is their mistake, and it caused this problem.

Answer 1

This may be a violation of the Occupational Safety and Health Administration (OSHA)'s Restrooms and Sanitation Requirements:

Employers must:

• Allow workers to leave their work locations to use a restroom when needed.
• Provide an adequate number of restrooms for the size of the workforce to prevent long lines.
• Avoid imposing unreasonable restrictions on restroom use.
• Ensure restrictions, such as locking doors or requiring workers to sign out a key, do not cause extended delays.

It may also be a violation of the Americans with Disabilities Act (ADA), which requires reasonable accommodations for workers with disabilities.

I am not a lawyer, but if this violates any regulations or laws, these would be the two to look at.

Answer 2

My question is, can they really enforce this?

As new york is an at-will state unless this somehow violates protected characteristics (highly doubtful) then unless you have a contract which offers more protections they can absolutely fire someone for not following the new policy. Or pretty much for any other reason, as long as it's not retaliatory (for example for whistleblowing) or discriminatory.

I have not spoken to HR about this yet

I would tread carefully making waves around this, your job is on the line as you are in an at-will state, where the primary remedy for you, if you disagree with terms of a job, is to go and find a new one. So before you get into that, be sure you can handle the possible repercussions.

More so the state whether how often it is reasonable to use the toilets, can it be done whenever they need and so on is still an unclear (and complicated) matter in the USA, and is decided on a case by case basis, and then it has to travel all the way up to OSHA.

Answer 3

When I worked at a call center, there were no provisions for stepping away that I know of. The expectation is that when you were on the clock, you were taking phone calls, unless you were in ACW (after-call work) which was frequently necessary (to note what happened during the call), and there was constant pressure to minimize that. If a person needed to be unavailable for minutes, they should log out, which required supervisory permission.

This was at a Fortune 500 company.

An example situation from the other side's perspective: I once ran some single-day testing centers for grade school children (which ranged from grades 3 to 12), and there were instructions for children to ask permission to go to the restroom. I followed policy and told that to the children. It almost sounded like a silly level of harshness, so I also offered an explanation. Our staff is not likely to say "no" unless the restrooms are filled up; we primarily wanted that so we would know where each student is. So, while the rule was technically that they would need to ask, they could generally expect a cooperative "yes" coming from us. I did this for weeks, and I noticed absolutely no resistance/blowback/complaining from the student body over this. I realize your place of employment is a different environment (dealing with adults), but presuming that efficiency desires lead supervisors to want to know where employees are, their request (simply wanting employees to sufficiently "communicate") doesn't really seem all that unreasonable to me. (I suspect they unfortunately just ended up communicating things in a way that made things seem unnecessarily sour.)