Expert: Fran Sepler - 3/12/2009

Question
I am a small business owner in Oakland, California.

I have a single employee. He usually takes four or five 5-min bathroom
breaks during his 8 hour work day. Often times it is preceded or followed up
by a 10-15 minute rest break.

In addition to his minimum 30 minute lunch break and a two 10  minute pair
rest breaks what am I obligated to allow?

Thank you,
Tim

Answer
California law requires a 30 minute lunch break and two ten minute breaks on an 8 hour shift, as you know. That is all that is required, with the exception of breastfeeding mothers, which I assume does not apply here. Any other time off can be deducted from the employee's pay.  If the employee has a medical condition that requires more frequent trips to the bathroom, he can file for an accommodation under the ADA with a doctor's description of his needs.  You can determine whether, for instance, his breaks can be reallocated or time differently and still allow for him to perform the essential functions of the job. If he claims he does not have a medical condition and you wish to persue this aggressively, you could insist he see a doctor to determine whether he is fit for duty.  This is of course a very aggressive stand that would be unpopular with your other employees. The best approach to take is to counsel him that he is expected to use his breaks for his restroom trips, and to let him know that while occasionally there can be an exception to this, continued frequent trips to the restroom will requre him to clock out for the time he is gone.

Hope this helps.  A good document about breaks can be found at

http://www.management-advantage.com/media/CARest-MealPeriods.pdf