Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: Our retail clothing chain has stores in 10 major cities across the country. We recently had an issue in our Seattle, Washington location. A customer claiming to have a medical condition wanted to use our private employee restroom. The store manager did not feel comfortable with this, as the restroom is employee-only near the breakroom. We’re short-staffed as it is, so there were no employees to spare to show the customer where the restroom was, let alone ensure he did not wander to other areas. He left in a huff and claimed this was against the law. Is he right?
—Free Rein in Retail
Dear Free Rein,
As with so many issues—it depends. At least 20 states1 and the District of Columbia have passed Restroom Access Laws requiring retail establishments to allow individuals with specific medical conditions to use employee restrooms under certain conditions. The first Restroom Access Law, also known as Ally’s Law, was enacted in Illinois in 2005 in response to an incident involving a 14-year-old who had Crohn’s disease, and was denied access to a department store’s employee restroom when no public facilities were available. Illinois’ law has become a model for Restroom Access Laws in other states, though some of the provisions of each state’s law are slightly different.
Washington is one of the states with a Retail Restroom Access Law, which provides that a retail store customer, defined as a person who is “lawfully on the premises of a retail establishment” with an eligible medical condition, must be allowed to use the store’s employee restroom if they use an ostomy device or have Crohn's disease, ulcerative colitis, irritable bowel syndrome, inflammatory bowel disease, or any other medical condition that requires immediate access to a toilet facility. There are some additional requirements:
- The store can request evidence of the customer’s eligible medical condition. A Washington Department of Health card or an identification card from a nonprofit organization such as the Crohn’s & Colitis Foundation’s “I Can’t Wait” card satisfy this requirement;
- The employee restroom must not be in an area in which access would create a health or safety risk to the customer or a security risk to the business or its employees; and
- Three or more employees must be working at the time the customer requests to use the restroom so that if one of the employees shows the customer to the restroom there are other employees available to keep an eye on the store and serve other customers.
You haven’t indicated how many employees were in the store when the customer asked to use the restroom or if the employee restroom was in a safe area for the customer and the store and its employees. When those conditions are met, store managers should speak privately to customers requesting to use the restroom and advise them that the employee restroom is available only to people with certain medical conditions, and politely ask if the customer has identification establishing that they qualify. In many cases, customers with qualifying medical conditions will automatically show the required cards when they ask to use the restroom, but if they do not do so and they fail to provide evidence of their condition, it may be awkward, but the manager has the right to deny the customer access to the restroom. If the manager knows of an available public restroom nearby, of course it’s always a good idea to advise the customer of that as well.
You mention that you have stores in other major cities across the country, so you will want to check whether there are Restroom Access Laws in those states and, if so, what they require. There are differences in each state’s law regarding the eligible medical conditions, number of employees available to trigger obligations under the law, and types of proof required to show medical necessity to use the restroom, as well as a few other distinctions.
Eligible Medical Conditions
Generally, all state Restroom Access Laws expressly include Crohn's disease, ulcerative colitis, irritable bowel syndrome, or inflammatory bowel disease as eligible medical conditions. Some laws such those in Michigan and the District of Columbia, also include pregnancy in the definition.
The text of the laws in a number of locations, such as Connecticut, the District of Columbia, Louisiana, Massachusetts, New Hampshire, Ohio, Washington and Wisconsin expressly include use of an ostomy devise (a medical device that collects waste from the colon or bladder that have been surgically altered) as an eligible medical condition. The Restroom Access Laws of most other states, including California, which passed a Restroom Access Law this session, Colorado, Delaware, Michigan, Minnesota, New York, Oregon, Tennessee, and Texas, do not expressly include use of an ostomy device but refer more generally to “any other medical condition that requires immediate access to a toilet facility.” Retail business owners may want to err on the side of caution and provide employee restroom access to those who use an ostomy device.
Statutes differ as to the number of employees that must be working when a customer requests restroom access. Almost all states, including California, Colorado, Connecticut, Illinois, Kentucky, Massachusetts, Oregon, Texas, Washington, and Wisconsin, provide that three employees must be working at the time of the customer’s request to trigger compliance obligations. Other states, most notably Michigan and New York, require only two employees to be working when there is a customer requesting restroom access. The text of the Restroom Access Laws of a few states, including Louisiana, New Hampshire and Ohio, do not mention requirements for employee presence at all.
Proof of Medical Necessity
At least two states, Washington and New York, have developed their own restroom access cards, and the District of Columbia law, which went into effect on August 27, 2022, requires the D.C. Department of Health to develop an online form for use by eligible individuals. While many states accept the “I Can’t Wait” cards issued by the Crohn’s & Colitis Foundation, some have more specific requirements. For example, Colorado and Massachusetts require a signed physician’s note and Michigan requires a statement on a prescription form signed by a doctor.
Other Specific State Requirements
Business owners should check each state’s law for compliance as there may be other variations in the Restroom Access Laws of various locations. Some are described below:
Maine does not define eligible medical conditions or require proof of any medical condition, so presumably anyone claiming they have a medical condition requiring immediate access to a restroom should be allowed to use the employee restroom as long as there is no public restroom available and the employee restroom is in an area that doesn’t pose a health or safety risk to the customer or a security risk to the business.
Delaware is one of the only states that defines “health or safety risk.” The statute states the term “include[s] but is not limited to a situation where accessing the employee restroom facility requires the customer to traverse an area where manufacturing or heavy equipment is in use, items are stored on high shelves, adequate lighting is not present, the floor may be wet or slippery, or hazardous materials are used or stored.”
Louisiana specifically excludes retail establishments that sell prescription drugs or where the employee restroom is in an area accessible to prescription drugs or Health Insurance Portability and Accountability Act (HIPAA) records.
The statutes are generally enforced by each state’s Department of Health. Violations of these laws generally provide for fines of $100 for each offense. Although the fines may seem small, the involvement of the state Department of Health and adverse publicity for violations create an incentive for compliance.
In sum, Free Rein, you should develop policies and procedures to comply with the Restroom Access laws in Washington and in any other states with similar laws where you currently have operations. Considering the significant number of states that already have Restroom Access Laws, and locations such as California and the District of Columbia that just passed such laws, retail business owners and managers should routinely monitor state law for new developments to ensure compliance.
1 California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New York, Ohio, Oregon, Tennessee, Texas, Wisconsin, and Washington.