Improving the Safety, Health, and Productivity of Transit Operators Through Adequate Restroom Access (2020)

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208 United States Workplace Regulations In the United States, transit vehicle operators are guaranteed restroom access in several ways. In addition to federal Occupational Safety and Health Administration (OSHA) Sanita- tion Standard 29 CFR 1910.141, restroom access in many jurisdictions is addressed in state and federal labor standards covering rest and meal breaks, state versions of restroom access laws for specified medical conditions, and collective bargaining agreements. However, these are not industry specific and do not address organizational approaches. An industry review was recently funded by the U.S. Department of Transportation to identify public transportation safety standards and protocols, and to identify those related to “schedul- ing fixed-route rail and bus service with adequate time and access for operators to use restroom facilities,” among many others. The Federal Transit Administration (FTA) contractor was not able to identify any restroom-related standards or protocols, and none were offered by the public in response to a request for comments to the Federal Register (Staes 2017). Occupational Safety and Health Administration The Federal OSHA rules and those of the related state plans clearly define required access to restrooms on the job. Under 29 CFR 1910.141(c) employers must provide access to enough sanitary, equipped toilet facilities at the workplace: Employers must maintain restrooms in a sanitary condition. Restrooms must provide hot and cold running water or lukewarm water, hand soap or similar cleansing agent, and warm air blowers or individual hand towels (e.g., paper or cloth). Waterless hand cleaner and towels/rags are not adequate substitutes for soap and water. (OSHA n.d.-a) The standard applies to all employees of private companies, including transit management contractors to state and local systems, as well as to public-sector employees in 25 states, the Dis- trict of Columbia, and several territories, under agreements with OSHA (OSHA n.d.-b). There is an exception for mobile crews, which include transit vehicle operators when on the road, as employers are not required to maintain toilets for them. However, transportation to proper nearby toilet facilities must be immediately available when they are on the job. OSHA acknowledges that some workplaces cannot be left unattended, including vehicles, and allowed for a reasonable call-in procedure (OSHA n.d.-a). On its “Restrooms and Sanitation Requirements” webpage, OSHA (n.d.-a) clarifies the appli- cation of 29 CFR 1910.141 to mobile workers and provides links to the agency’s letters of inter- pretation issued in response to questions posed by employers and others about the standard, as excerpted in Figure D-1. The standard requires “water closets” that flush, with heat, light, and A P P E N D I X D Laws and Regulations About Restroom Access for Transit Vehicle Operators

Laws and Regulations About Restroom Access for Transit Vehicle Operators 209 running water. Chemical toilets may be allowed if “(1) the lack of water or temporary nature of the installation makes water carriage systems impracticable; (2) the portable toilets are readily accessible by employees; (3) the portable toilets have adequate lighting, are secure, and have heating as necessary; and (4) they are well-maintained and properly serviced. If the portable toilets fail to meet the criteria set forth above, an other-than-serious citation should be issued” (OSHA 1999). An early letter of interpretation confirmed that the purpose of the sanitation standard is to ensure access to sanitary toilet facilities “so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them” (OSHA 1974). Health concerns they cited included medical conditions, pregnancy, prostate health, diet, medi- cations, temperature, and fluids consumed. Later OSHA confirmed that “The need to use toilet facilities varies from person to person and even with respect to the same person.” OSHA recently issued best practice guidance for transgender workers establishing the core principle that “everyone should be able to use restrooms corresponding to their gender identity” (OSHA 2015). While not regulatory, this guidance is in line with the Equal Employment Oppor- tunity Commission ruling of the same year. The Templates for Restroom Access Policies and Boilerplate Contract Language provided with this report include a Compliance Checklist for OSHA Standard 141(c): Toilet Facilities. This template is a modifiable checklist of what OSHA looks for when inspecting workplaces in response to complaints about restroom access. It can be used by service coordinators, vehicle operators or others in a TA’s restroom access program. OSHA can cite other violations related to restroom access, such as the General Duty Clause of the OSH Act if assaults or accidents are allowed to occur or Section 11(c) if employees are discriminated against for reporting their concerns. The National Transit Systems Security Act protects employees who report a violation of federal laws related to safety or funding, and violations are investigated by OSHA (OSHA n.d.-c). In some jurisdictions, the National Labor Relations Board can issue a complaint against an employer if workers are disciplined for concerted health and safety activity, such as requesting improved restroom access. OSHA Tip of the Week 5/2/2019: Allow workers to leave their work locations to use a restroom when needed. "Employers with mobile workers must provide readily available transportation that provides prompt access (i.e., less than 10 min.) to restrooms if they are not available at the work location. . . . Also, when work stations require constant coverage (e.g., production lines and bus drivers), employers may implement a system for workers to request relief as long as there are sufficient relief workers to assure the wait is not unreasonably long." Letters of Interpretation 4/6/1998: This standard [29 CFR 1910.141] requires employers to make toilet facilities available so that employees can use them when they need to do so. 6/7/2002: Mobile crews must have prompt access to nearby toilet facilities. For example, in general, toilets would be considered “nearby” if it would take less than 10 minutes to get to them. 4/23/2003: In such situations, employers need flexibility in developing procedures that will allow all of their workers access to toilet facilities as needed. A specific schedule for breaks might not allow the flexibility needed to address all types of work situations. Source: OSHA n.d.-a. Figure D-1. OSHA mobile workforce policies.

210 Improving the Safety, Health, and Productivity of Transit Operators Through Adequate Restroom Access Enforcement Process OSHA Area Directors and compliance officers encourage agreements between employers and workers on how to provide needed access to toilet facilities. Issuing a citation does not in itself resolve the problem. Therefore, the Area Directors and compliance officers first encourage employers and employees to work together to see how they can resolve their differences and create a system/procedure that will work in that particular workplace for that specific employer and employee(s). (OSHA 2003) OSHA and related agencies will typically respond to a nonemergency complaint with a faxed letter or a phone call. If satisfied with the employer’s response, OSHA will confirm that and send a letter to the original complainant and to the union if there is one. In Illinois in 2014, fol- lowing a complaint about unsanitary washroom conditions at a paratransit company, the local OSHA office asked the employer to investigate and fix whatever hazards were found without issuing a citation. If the employees disagree with the employer’s response, they can request an inspection. This happened at a school bus location in Yonkers, New York, when the employers faxed OSHA a picture of a portable restroom that they had never installed. This resulted in citations and fines in several standards, as OSHA is allowed to cite violations beyond the complaint. In an inspection, one or more OSHA compliance officers will come to the facility without notice to the employer or the complainant. OSHA provides guidance to compliance officers about when to issue restroom access citations and how serious the violation is (OSHA 1998, n.d.-b). The key questions are: Is restroom access immediately available and, if not, are any restrictions reasonable? The compliance officer asks the questions shown in the Compliance Checklist for OSHA Standard 141(c): Toilet Facilities (Figure D-2) about restrictions, reasonable Issue Y/N Notes Is there toilet paper? Is there soap? Is there running water for washing hands (hot and cold or tepid)? Are there towels or hand dryers? Is there light when needed? Is there heat when needed? Restrictions What restrictions are there on restroom access? How long must a vehicle operator wait to use the restroom? What is the employer’s explanation for any restrictions/delays? Are the restrictions a general policy or supervisory decision? Impact Does the employer’s policy recognize individual medical needs? Have drivers reported health problems related to restroom use? How often are drivers denied permission to use a toilet? Reviewer name and signature Review Date Figure D-2. Compliance Checklist for OSHA Standard 141(c): Toilet Facilities.

Laws and Regulations About Restroom Access for Transit Vehicle Operators 211 accommodations, and the health impact of the employer’s policies. (This checklist is available in this volume in “Templates for Restroom Access Policies and Boilerplate Contract Language” and in modifiable Microsoft Word format on the summary web page for this guide on the TRB website (trb.org). If violations are found, a citation will be issued and a meeting—the informal conference—will be held with the employer, the complainant, and union representatives, if any, to discuss how to resolve it. Employers can contest the citation, the penalties, if any, and the proposed abatements. Employees may only object to the time frame for the abatements. Citations OSHA or state plan partners initiated 574 transit agency investigations between January 2013 and March 9, 2019, leading to citations at 202 locations, for 651 total violations. Of these, 12 cita- tions referred to the sanitation standard, but only three were for restroom access. Some examples of sanitation standard incidents at transit agencies are listed in Table D-1. Two cases stand out: In California, restroom access for operators was a long-standing problem. A compliance officer issued a citation in 2009 because drivers did not have proper access to toilets on 20 routes during all working hours. Management agreed to participate in a union–management committee about restroom access and to provide drivers with lists of rest- rooms and potable water locations on their paddles. Figure D-3 shows the information memo- randum that was included with the citations but not considered a violation because workers had not yet experienced restricted access at the location. It acknowledged the pressure of route planning while requiring that adequate restroom access cannot be delayed because of it. Agency Event Year Summary NYS PESH Citation 2016 Inadequate number of toilets at bus depot. OR L&I Citation 2013 Not allowing unscheduled breaks for paratransit operators. WA L&I Citation 2014 “King County Metro did not provide transit operators with unrestricted access to bathroom facilities when needed to relieve themselves in the following circumstances: bathrooms are not available during all hours of each route service; bathrooms are not located at each route terminal within a distance that can be accessed during the scheduled recovery time; operators have been disciplined for running late due to time spent using a bathroom or searching for an available public bathroom.” IL OSHA OSHA first letter 2014 Sent to employer regarding complaint that employees were not provided sanitary facilities, not supplied with soap, and other concerns. No further record. Cal/OSHA Citation 2009 Detailed, defining 20 bus lines in violation of standard, including lack of restrooms on entire route or at beginning and end of route. OSHA Citation 2008 School bus employer cited for standard violations, including no heat, no running water, no paper towels or air blowers, no hand soap, etc., for school bus drivers at location. OR OSHA Fatality investigation 2005 “Employee #1, a bus driver for the Tri-County Metropolitan Transportation District of Oregon, was exiting a bus to use the Transit Center lunchroom. Employee #1 got out of the bus, walked around the front to the driver’s side window, reached in and closed the front and rear doors. Afterward, she walked to the curb across the front of the bus. Employee #1 forgot to set the parking brake and take the bus out of gear. She was struck and run over. Employee #1 was killed.” Fellow workers said she was hurrying to use the restroom. No citation was issued. Note: NAICS = North American Industry Classification System. Table D-1. Examples of compliance events for 29 CFR 1910.141(c) in NAICS Code 481.

212 Improving the Safety, Health, and Productivity of Transit Operators Through Adequate Restroom Access In 2014, the Washington State Department of Labor & Industries fined an employer $3,500 because it did not give the 2,700 transit vehicle operators “unrestricted access to restroom facili- ties when needed to relieve themselves” and failed to provide running water at a terminal por- table toilet facility for more than 6 years (Washington State Department of Labor and Industries 2014). In addition, the employer was found to have disciplined operators “for running late due to time spent using a restroom or searching for an available public restroom.” The employer requested an abatement modification, but it has carried through with an extensive program to address the identified problems. State Break Regulations Rules about meal or rest breaks or restroom access that apply to transit employees were found for 16 states (Table D-2). Most require a break within a set time frame or after a minimum time on the job, often 4 hours. Some kind of paid break is required in six statutes: four that require rest breaks of 10 minutes (Kansas, Nevada, Washington, and Kentucky) and two that call for paid lunch breaks (Colorado and Puerto Rico). In California, the breaks law does not apply in the public sector, except for commercial drivers (Industrial Welfare Commission 2018). Both California and Delaware exempt workers from regulated breaks if there is an in-force collective bargaining agreement that defines the breaks negotiated (U.S. Department of Labor 2019). Vermont requires that employers give workers “reasonable opportunity” to eat and use rest- rooms (Vermont Department of Labor 2019). In Oregon, the law requires employers to allow a 10-minute unscheduled break in every 4 hours (State of Oregon, n.d.). In Minnesota, workers must be allowed “adequate time” to use the “nearest convenient” restroom in every 4-hour period at work (Office of the Revisor of Statutes, 1988). In Iowa, employees must be able to take toilet breaks when needed (Iowa Division of Labor, n.d.). A proposed Illinois bill would give transit vehicle operators 10 minutes every 4 hours to use the nearest convenient restroom on a paid break; unions and their employers could bargain breaks for different time periods (Employment.Laws.com 2019). The employer is in the process of reconfiguring bus lines due to changing budgetary and operational needs, and will designate what toilet functions will be available on each bus line for use by bus operators. During this reconfiguration process, the employer should: 1. Ensure that toilet facilities are designated and accessible to bus operators during all working hours, including early mornings, late evenings, overnight, [and] on weekends and holidays; 2. Make a good faith effort to maintain all designated toilets in a clean and sanitary condition in the future; and 3. Explore joint efforts, wherever possible, with other transit agencies having similar responsibilities—such as BART [Bay Area Rapid Transit], Golden Gate Transit, WestCAT, and Vallejo/Solano Transit—to establish “employee-only” restrooms at shared, designated toilet facilities, and to share responsibility to maintain these toilet facilities in a clean and sanitary condition. Figure D-3. Cal/OSHA Memo. Break Type Number of States Toilet access specified 3 Minimum 10 min. 5 ≥20 min. 6 Paid meal 2 Table D-2. State breaks regulations.

Laws and Regulations About Restroom Access for Transit Vehicle Operators 213 The federal Fair Labor Standards Act defines requirements for pay and hours of work (U.S. Department of Labor 2019). While there is no statutory requirement for meal or rest breaks, any break time less than 20 minutes must be counted as hours worked. For a break of 20 minutes or longer to be unpaid, the employee must be uninterrupted and not on call during that time. Other Applicable U.S. Rules Ally’s Law, or the Restroom Access Act, has been passed in 17 states as of early 2019. The intent is to make sure that those who need to use washrooms urgently can do so without embarrass- ment and without accidents. The law says businesses must let people use employee wash- rooms if they have specified medical conditions and present the relevant card or form. The conditions of concern usually involve the digestive system (e.g., Crohn’s Disease, inflammatory bowel disease, an ostomy device); some states include pregnancy. Canadian Workplace Regulations There is no consistent approach to restroom access across Canada, where health and safety is a provincial or territorial responsibility, except for specified industries (Government of Canada 2015). Most health and safety laws or regulations cover the number of toilets required and how they are to be kept clean, but not frequency or ease of access. New Brunswick’s health and safety regulations detail employer responsibilities, as listed in Figure D-4. They exclude “ferries, trains and vehicles” only from toilet number requirements (Sections 3.2 and 5.1–5.3). Alberta’s code says that employers “must not place unreasonable restrictions on a worker’s use of, or access to” restrooms (s. 354) and employers “must ensure that a toilet facility is located so that it is readily accessible to the workers who may use it” (s. 357) (Government of Alberta, Canada 2009). Other jurisdictions have similar rules, defined as pro- viding access or not having unreasonable restrictions. Where Manitoba law states that an employer “must not place unreasonable restrictions on a worker’s use of or access to toilet facilities at a workplace” (Province of Manitoba, Canada 2014), it might seem that this does not apply to drivers on the road. However, the applica- tion of the rules depends on how a workplace is defined. Manitoba’s Workplace Safety and Health Act (Province of Manitoba, Canada 2014) includes a “mobile vehicle.” The laws in British REGULATION 91-191 5(7) An employer shall ensure that a toilet facility is a) within easy access of an employee’s work site, b) enclosed so that an employee is sheltered from view and protected from the natural elements, c) adequately ventilated and illuminated, d) where possible, heated, e) kept in a clean and sanitary condition, f) provided with a sufficient supply of toilet paper and hygiene supplies, g) provided with a covered waste receptacle, h) maintained in working condition, and i) in the case of a self-contained unit, is emptied and serviced at intervals which ensure that the unit does not overflow. Source: Government of Alberta, Canada 2009. Figure D-4. New Brunswick, Canada, workplace restroom access requirements.

214 Improving the Safety, Health, and Productivity of Transit Operators Through Adequate Restroom Access Columbia, Nova Scotia, Newfoundland and Labrador and Prince Edward Island also specifi- cally define a “place of employment” to include vehicles or mobile equipment. Ontario’s work- place definition includes a “thing at, upon, in or near which a worker works”; Nunavut has a similar definition (Government of Canada, Minister of Justice 2019). The other five jurisdic- tions (Saskatchewan, Quebec, Yukon, the Northwest Territories, and the federal government) say nothing about mobile workplaces. Some jurisdictions require employers to provide restroom facilities where “reasonably prac- ticable.” The employer must assess the costs (in time, trouble, and money) of taking action or doing little or nothing; there must be a “gross disproportion” between the two before it is not reasonably practicable to provide or arrange bathroom access (Rankin et al. 2008). More generally, management and worker roles in ensuring restroom access are supported by the health and safety program requirements for many employers across the country. Typically, employers must consult the workplace joint health and safety committee (or worker represen- tative) about issues related to health and safety. Health and safety laws generally require these committees in workplaces with 20 or more employees and require worker representatives in workplaces with five to 19 employees. The committees and representatives have a range of responsibilities, such as taking complaints, inspecting worksites, reviewing occupational safety and health activities and programs, and making recommendations to employers. Unreasonable restroom access restrictions would also be limited by the general due diligence requirements that employers must meet to protect workers’ health and safety (CCOHS 2019). References Canadian Centre for Occupational Health and Safety (CCOHS). (2019). OH and S Legislation in Canada—Due Diligence. https://www.ccohs.ca/oshanswers/legisl/diligence.html. Employment.Laws.com. (2019). Illinois Labor Laws Breaks. https://employment.laws.com/illinois-labor-laws- breaks. Government of Alberta, Canada. (2009). Occupational Health and Safety Code, Alberta Regulation 87/2009. http://www.qp.alberta.ca/ohscode.cfm. Government of Canada. (2015). Employment Standards. https://canadabusiness.ca/government/regulations/ regulated-business-activities/human-resources-regulations/employment-standards/. Government of Canada, Minister of Justice. (2019). Canada Labor Code Sor-86-304. https://laws-lois.justice. gc.ca/eng/. Industrial Welfare Commission. (2018). Order No. 9-2001: Regulating Wages, Hours, and Working Conditions in the Transportation Industry. Department of Industrial Relations, Public Information Office, San Francisco, CA. Iowa Division of Labor. (n.d.). Wage Frequently Asked Questions. https://www.iowadivisionoflabor.gov/wage- frequently-asked-questions. Occupational Safety and Health Administration (OSHA). (n.d.-a) Restrooms and Sanitation Requirements. https://www.osha.gov/SLTC/restrooms_sanitation/. Occupational Safety and Health Administration (OSHA). (n.d.-b) State Plans. https://www.osha.gov/stateplans. Occupational Safety and Health Administration (OSHA). (n.d.-c). Worker Protection. Whistleblower Protection Program. https://www.whistleblowers.gov/about-us. Occupational Safety and Health Administration (OSHA). (1974). General Environmental Controls: Sanitation 29 CFR 1910.141 (Occupational Safety and Health Standards ed.). Occupational Safety and Health Administration (OSHA). (1998). Standard Interpretations: Interpretation of 29 CFR 1910.141(C)(1)(I): Toilet Facilities. https://www.osha.gov/laws-regs/standardinterpretations/ 1998-04-06-0. Occupational Safety and Health Administration (OSHA). (1999). Standard Interpretations: Substituting Portable Toilets for Water Closets May Be a De Minimis Violation. https://www.osha.gov/laws-regs/ standardinterpretations/1999-05-18. Occupational Safety and Health Administration (OSHA). (2003). Reasonable Access to Toilet Facilities; Citation Analysis for Failure to Allow Access to Toilet Facilities. https://www.osha.gov/laws-regs/ standardinterpretations/2003-04-23. Occupational Safety and Health Administration (OSHA). (2015). A Guide to Restroom Access for Transgender Workers. Best Practices series. Washington, DC. https://www.osha.gov/Publications/OSHA3795.pdf.

Laws and Regulations About Restroom Access for Transit Vehicle Operators 215 Office of the Revisor of Statutes. (1988). Mandatory Work Breaks. Subdivision 1, Rest Breaks. https:// www.revisor.mn.gov/statutes/cite/177.253. Province of Manitoba, Canada. (2014). Manitoba Workplace Safety and Health Act and Regulation 2014. https://www.gov.mb.ca/labour/safety/pdf/2014_whs_act_regs.pdf. Rankin, J., Todd, L., and Wigmore, D. (2008). Part C: Principles of Health and Safety at Work. In Seeing the Workplace with New Eyes: A Self-Help Guide for Workplace Safety and Health Committees and Workplace Safety and Health Representatives. New Eyes Project and SAFE Work Manitoba. https://www.mgeu.ca/files/ File/Seeing%20the%20Workplace%20with%20New%20Eyes%20Guide%2008.pdf. Staes, L. (2017). FTA Report to Congress on 2015 Section 5314 Projects: Review and Evaluation of Public Transportation Safety Standards. FTA Report No. 0103. Center for Urban Transportation Research, University of South Florida, Tampa. https://rosap.ntl.bts.gov/view/dot/39034. State of Oregon. (n.d.). Rule 839-020-0050, Meal and Rest Periods. https://oregon.public.law/rules/oar_ 839-020-0050. U.S. Department of Labor. (2019). Minimum Paid Rest Period Requirements Under State Law for Adult Employees in Private Sector. https://www.dol.gov/whd/state/rest.htm. Vermont Department of Labor. (2019). A Summary of Vermont Wage and Hour Laws. Wage and Hour Program, Burlington, VT. https://labor.vermont.gov/sites/labor/files/doc_library/WH-13-Wages-and-Hour- Laws-2019%20.pdf. Washington State Department of Labor and Industries. (2014). King County Metro Inspection 317378149. http://op.bna.com.s3.amazonaws.com/env.nsf/r%3FOpen%3drdae-9wmt57.