Ask the Experts: Short Weeks, Bathroom Breaks and Disabilities

On Jun 17, 2024

We’re planning to close the office a few days a week to save money. Do salaried exempt employees still get their full pay during these furloughs?

Yes, salaried exempt employees must be paid their full weekly salary if they do any work during your designated seven-day workweek, including tasks as quick as checking work email or voicemail. As your goal is to save money, be sure the furlough covers the full workweek and that affected exempt employees understand they’re not to do any work while on furlough.

Nonexempt employees, however, only need to be paid for actual hours worked, so single-day or partial-week furloughs can be implemented without worrying about pay implications.

What can we do about an employee who is taking too many restroom breaks?

Start by asking yourself if the employee’s restroom breaks are genuinely causing problems. Focus on the employee’s productivity and performance (as well as any coverage issues) rather than the amount of time spent in the restroom. If the employee is getting their work done and productivity is not negatively impacted, we’d suggest not addressing this subject at all.

If the employee’s bathroom breaks are causing issues with productivity, performance, or coverage, you should talk with the employee to find out what’s going on. However, the laws below may come into play, so keep them in mind:

The Occupational Safety and Health Act requires that employees be allowed to use the restroom as needed, though an employer can still have reasonable restrictions on use and access to the restroom. 

The Pregnant Workers Fairness Act will apply if the employee is pregnant or has a condition related to pregnancy or childbirth.

The Americans with Disabilities Act will come into play if the employee has a medical condition that qualifies as a disability. 

If the employee doesn’t cite any medical issue, then explain your expectations, referring to any handbook or company policies that apply, and make sure they understand that there will be consequences for not meeting those expectations in the future.

A candidate told us they have a disability. What do we need to do?

We recommend asking if they need an accommodation during the application process, but above all, ensure that having this information doesn’t influence your hiring decision. The Americans with Disabilities Act (ADA) requires employers to provide accommodations to applicants with disabilities if needed to be considered for a job unless the accommodation causes an undue hardship. If the applicant doesn’t need an accommodation, simply continue to focus on the candidate’s skills and abilities relative to the position for which you are hiring.

Employers are prohibited from asking about disabilities before offering an applicant the job. As a best practice, you should be asking all candidates – not just those who disclose a disability or appear to have a disability – whether they can perform the essential functions of the job with or without a reasonable accommodation. This can be as simple as adding a question to your job application. 

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