Emergency Toilet Time for Irritable Bowel Syndrome (IBS) under the ADA?

Yes. To begin, we can readily agree that bowel movements are a “major life activity.” Back to that thought in a short minute.

According to the EEOC, Home Depot failed to provide an emergency break to an employee with irritable bowel syndrome at its Peru, Ill. store. Instead of accommodating the employee, Home Depot fired her for allegedly violating company policy by leaving her post unattended, the federal agency charged.

The EEOC sued in behalf of the fired worker.

Last week, the EEOC and Home Depot settled the lawsuit for $100,000.

Many employers have strict rules about bathroom breaks. With that in mind, the Americans with Disabilities Act defines disability as a substantial impairment of a major life activity, whether the impairment is physical or psychological.

Back to our first point: bowel movements are a major life activity. That being said, an employer must provide a reasonable accommodation unless it presents an undue hardship.

While details of the settlement do not discuss particulars, the EEOC likely persuaded Home Depot that it would prevail in court because allowing a sales person to run to the bathroom for irritable bowel syndrome would not be unreasonable as an accommodation, nor an undue hardship.

You might be asking, “Suppose the employee runs constantly to the bathroom?” The EEOC news release doesn’t address this, but accommodating a constantly recurring need would not strike me as reasonable. Occasional and unpredictable instances would seem within the realm of reasonable.

You might also ask, “What if time for toileting is long?” Again, I would think the same reasoning applies. If a 15-minute trip to the bathroom is necessary, that would seem unreasonable for purposes of requiring an accommodation. Five minutes? Seems reasonable to me for a sales associate.

Neither the EEOC nor any employment lawyer can make this crystal clear. But I leave you with this observation from the Greg Gochanour, the regional attorney for the EEOC: “The ADA requires employers to provide reasonable accommodations to employees with disabilities that enable them to perform their jobs. It is regrettable that instead of working with the employee to help secure coverage of her post in the event of a disability-related emergency restroom break, Home Depot fired her when, despite her best efforts, she was unable to find coverage.”