Oct. 15, 2009 Employers Are Reminded to Let Employees Use the Restroom

Summary

Yesterday, in A.M. v. Albertsons, LLC, a California Court of Appeal published an opinion affirming a $200,000 judgment for a current employee based largely on one failure to provide a restroom break, despite a long history of successful accommodations.

Details

A checker at Albertsons was on leave for one year (after sixteen years of service) for cancer treatment.  Her treatment affected her salivary glands so she needed to drink a great deal of water to remain hydrated.  In turn, she needed to use the restroom frequently.  Albertsons had a policy of not allowing checkers to have beverages at their checkstands.  When the employee returned to work, she told her managers about her need for water at her checkstand and for frequent restroom breaks.  They granted an exception to the beverage policy and told her that someone would cover her checkstand when she needed to go to the restroom.  This worked for over a year.

One night, however, when the checker was working, there were only two other employees in the store.  One employee was not qualified to run the register and the other was unloading merchandise from a truck.  The employee unloading merchandise was "in charge", but she did not know about the checker's disability or her accommodations.  When the checker called her and said she needed to go to the restroom, the "in charge" employee asked if she could wait because she was too busy to relieve her.  This exchange happened three times until, finally, the checker urinated while standing at the checkstand.  Based on the traumatic experience, the checker went home and commenced another leave of absence.  Eventually, after discussions with Albertsons, she returned to work and has received regular restroom breaks since.  Yet, she sued for various claims under the Fair Employment and Housing Act, one of which was for failure to accommodate her disability based on the "in-charge" employee's refusal to relieve her so she could use the restroom on that one occasion.

Notably, Albertsons had a detailed reasonable accommodations policy and process, including templates to document such efforts.  Although it did provide a reasonable accommodation (except for this one evening) to the checker, Albertsons did not follow its own process or use its own template to document the accommodations.

On appeal, Albertsons argued that the single incident was insufficient, especially in light of its history of accommodation before and after the incident.  The court rejected this argument and held that any refusal of an already agreed-upon accommodation was a violation of the FEHA.  Albertsons also argued, equally unsuccessfully, that the employee had a duty to inform the "in-charge" person of her already agreed-upon accommodation. 

What This Means

This case is a cautionary tale for employers on a number of fronts.  It reminds employers, at the very least, to take the following steps in dealing with reasonable accommodations: (1) have a policy and process for dealing with accommodations; (2) make sure you communicate the process to all employees; (3) make sure you follow the process; (4) document, document, document – the process, the decision, and how the accommodation will be implemented; and finally (5) make sure you follow up and communicate with the employee and anyone who needs to know what accommodations have been granted.

This E-Update was authored by Melissa Listug Klick.  For more information, or questions, please contact Ms. Listug Klick or any Paul, Plevin attorney at (619) 237-5200