Tuesday, June 9, 2015

Pondering the Potty Question? New OSHA Guidance on Transgenders and Bathroom Usage

Men or Women?  Damen or Herren?  Chicks or Dudes?  Restroom doors are gender-coded to ensure, usually for comfort and privacy, that men use the men's room and women use the women's room.  It may sound simple, but the issue is not so clear cut for transgender employees in the workplace.  Do men who identify as women use the men's room or women's room? 
Occupational Safety and Health Administration (OSHA) Sanitation standard 1910.141 requires employers to provide employees with toilet facilities, and employers may not impose unreasonable restrictions on employee use of those facilities.
Last week, OSHA issued a new "Best Practices" publication titled, "A Guide to Restroom Access for Transgender Workers."  Best Practices: A Guide to Restroom Access for Transgender Workers.  Therein, OSHA recommends the following best practices:   
  • A person who identifies as a man should be permitted to use the men's room, and a person who identifies as a woman should be permitted to use the women's room.
  • Where possible, employers should provide options, including single-occupancy, gender-neutral (unisex) facilities, or multiple-occupant, unisex restrooms with lockable, single-occupant stalls.
  • Employers should not ask transgender employees to provide medical or legal documentation of their gender identity.
  • Transgender employees should not be required to use a segregated facility apart from other employees because of their gender identity or transgender status.
Hospitality employers with multi-state operations should also be mindful that a number of states, including Colorado, Delaware, the District of Columbia, Iowa, Vermont, and Washington have specific laws related to gender identity and bathroom use.