Human Resource Blog

Yes, OSHA regulations and state worker safety regulations require that an employer furnish potable drinking water in every state.

Potable simply means not poisonous. Tap water is generally potable, meaning the employees can drink it without dying. Occasionally a town may issue a *boil order* for tap water, meaning it must be boiled before drinking, due to harmful bacteria. In that case, as an employer, you must provide an alternate source of potable drinking water.

However, there is no requirement that the employer provide bottled water. A jug or water cooler containing tap water from another source is fine. This is why huge yellow water jugs filled with ice and tap water are so prevalent on construction sites.

This is a tough problem and you need to handle it diplomatically. From your question, it sounds like this employee is spending an hour or so in the bathroom on each 8 hour shift. It also sounds like he is at least trying to mitigate the problem by using 5 minutes of his paid 10-minute breaks, reducing total lost work time to 30-50 minutes, in addition to a 30-minute lunch.

Still, that is a lot of time for a security guard to be away from his station — and that is how you should approach the problem. Sit down and have a frank discussion with this employee, letting him know that he is away from his work station an awful lot, and while you want to be an understanding employer, a security officer needs to be at the front desk to do his job. If the employee is doing something in the bathroom besides using the toilet, that should put an end to it.

OSHA worker safety regulations require that employees be permitted to use the toilet when nature calls. Different employees have different bathroom needs, but 15 minutes 4 times per day is a lot. Instead of berating the employee over his bowel functions, it is better to focus on the fact that you need him to be at the front desk except for his scheduled breaks and maybe two or three 5-minute breaks during the day. Keep the emphasis on the performance issue of being at the front desk, rather than on the reason for his absence.

If the employees record of being at the front desk does not improve, you may have to take disciplinary measures. At that point the union will become involved.

Be aware that this employee may have a physical condition like Irritable Bowel Syndrome that would require such frequent, lengthy visits to the toilet. If this is the case, and if the employee can document this condition, then he has a disability under the ADA, the Americans with Disabilties Act. That law would require you to make reasonable accommodations for the disability. In an office job, a reasonable accommodation for IBS would be allowing the employee to take frequent unpaid bathroom breaks. However, in this case, where you would have to hire another employee to cover the front desk during such breaks, there is probably not a reasonable accommodation for this disability in this job.

Every employer should be concerned about workplace violence, and take steps to prevent it. OSHA has excellent suggestions here. The USDA guidelines here are an excellent reference.

However, mental illness and workplace violence are two entirely separate issues. Your assumption that workplace violence is primarily caused by mental illness is unfounded. The vast majority of workplace violence is committed by individuals who do not have a mental illness. They are simply very angry or jealous, and see violent behavior as a viable option.

By the same token, up to 25 percent of Americans are on anti-depressants at some point in their life. They have a diagnosed mental illness, but 99.99 percent of them are never violent. Presumably you are not a medical professional, so even if an employee disclosed that he or she had bipolar disorder or schizophrenia, you would have no way of knowing if it was a violent type or not.

The issues you should address are anger management, workplace behavior, conflict resolution and the slightest hint of violence, not medication. To answer your questions, no, you cannot ask what medication an employee is on. Nor can you ask if they have a mental illness. Nor could you fire them if they did have a mental illness like bipolar disorder, depression, schizophrenia, etc. That would be illegal discrimination based on a disability. And again, the vast majority of people with those conditions are not violent, with or without medication.

A better way to weed out potentially violent employees is through the interview, reference check and background check process. Ask an employee in the interview about the worst disagreement they ever had at work. Ask references if the employee has ever displayed any tendency towards violence.

In this case it sounds like the employees remark about not taking his medication was more of an excuse than anything else. Your response needs to be along the lines of, *My concern is your behavior in the workplace, not any underlying medical causes. If you have a condition that causes this behavior, you need to take care of it. If that includes medication, you need to take it. I simply need to let you know that you are responsible for your behavior at work, and this behavior is unacceptable.*

If an employee volunteers information about a condition, that is one thing. But you are not allowed to require medical information from employees, in most cases. (If the employee does have a mental illness, usually that is covered under ADA and that information cannot be a factor in any employment decisions.) An employee can request an accommodation under ADA but obviously tolerating violent outbursts or verbal attacks is not a reasonable accommodation.

You need to address the behavior. No employer should tolerate verbal outbursts, poor anger management,  slamming doors or throwing things. Employees have the right to feel angry at work. They are expected to conduct themselves like adults and deal with that anger in a constructive way. If there is a problem, you can impose a cooling-off period, then sit down and discuss it like adults. An employee who cannot participate in this process is not a good candidate for continued employment.

Good HR practices and addressing employee concerns promptly are essential. Despite what you read, usually an irate employee does not *just snap.* Most often there has been a build-up of real or perceived grievances, issues, incidents, conflicts, or problems over time. You should take employee complaints seriously and address them. Trust your instincts. If you are frightened of an employee, there is probably a good reason for it.

If you have an employee who is angry and resentful, with issues you cannot resolve, it is probably better to terminate him or her. Paying unemployment to a discharged employee is a very small price to keep the workplace safe.

Usually there is a pattern of escalating violent behavior in the workplace weeks or months before a violent attack. That may include shouting, threats, other expressions of anger, property damage and other inappropriate behavior. You must take such incidents seriously and respond appropriately.

An employee who threatens anyone is breaking the law. Laying even one finger on anyone is assault. As an employer, you can and should call the police and prosecute such crimes. It sends a clear message that you will not tolerate this behavior.

Err on the side of caution. In most areas, if you are terminating an employee and fear violence, the police will send an officer to be on scene while you go through the process, if you call them ahead of time. Better safe than sorry.

Surprisingly enough, labor law posters explaining employee rights can help prevent workplace violence. Often, workplace violence occurs after an employee has a grievance and feels that he or she has no recourse. A clear system for addressing grievances including going over the supervisors head, an HR department, an HR hotline, anonymous complaint procedures, and workplace surveys or evaluations by employees all dispel the feeling that only violence will solve the problem. While many employers find complaints to government agencies distasteful, an employee who feels he has the option of reporting the company to the EEOC, OSHA or the U.S. Department of Labor is less likely to become violent.

OSHA regulates the number of toilets in cubicles, or *water closets* as the agency calls them, based on the number of employees of each sex. If you have 50 male and 50 female employees, you need 3 cubicles in the mens room and 3 in the womens room. (If all the employees go on break at the same time, OSHA may require you to have more.) Up to 1/3 of the *water closets* in the mens room can be urinals instead of toilets.

OSHA does not requier one large restroom, and depending upon the layout of your factory, it might make better sense to have two or more sets of bathrooms in different locations.

Read more about this at:  http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9790

This is a pipe dream.

Even if addiction to tobacco were ruled a disability, employees would be entitled to time off to attend a smoking cessation program — not time off to smoke. The same way an alcoholic is not given martini breaks to get drunk in the workplace, but may be given unpaid time off to attend Alcoholics Anonymous meetings. At most, smokers would be given permission to chew nicotine gum at work, and most employers already allow that.

No, there is no right to smoke in the workplace. A very few states such as Wisconsin have laws that an employer cannot discriminate in hiring against a tobacco smoker (or anyone else who engages in a lawful behavior outside of work.) Most states do not even prevent discrimination against smokers. An employer can simply refuse to hire any worker who smokes, and it would be legal.

There is no legal right to smoke during work hours, and many employers prevent it.  There is no law that an employee must be allowed to smoke outside on his or her breaks. Any property owner can prohibit smoking on the premises, including inside parked cars in the parking lot. The employer can also require that employees remain on the premises during meal and rest breaks. This effectively means that the employee would not be able to smoke for 8 or more hours per day.

Many employers including most hospitals have such policies, that effectively make it impossible to smoke at work. If you have ever watched someone die in agony of lung cancer, you will know why hospitals take this extreme approach.

Several states have laws that eliminate smoking in the workplace and require no smoking within 10 or 15 feet of any door, window  or air duct.

We know smoking is a terrible addiction, as difficult to kick as cocaine. However, studies show that smokers are less productive than other employees. They get less work done because they spend the equivilant of 10 - 20 work days per year on smoke breaks. Plus, they take more sick days than other workers. 

Every time we address the smoking laws and HR issues, we get nasty comments. We do not hate smokers, we are just reporting on the HR laws regarding smoking in the workplace. Those laws were not meant to punish smokers or to persecute them — they were meant to protect coworkers and their unborn babies from the well-documented negative effects of second-hand smoke.

Under the law, an employer must take steps to ensure that the workplace is a safe and healthy environment for all workers. Many states have ruled that being exposed to second-hand smoke in the workplace creates an unsafe working condition, and taken steps to eliminate that hazard.