A Swiss court has ruled that time spent going to the bathroom doesn’t count as working time, meaning companies aren’t required to pay employees for these breaks.
The court accepted a legal interpretation that considers bathroom breaks outside the scope of paid work hours.
While several countries are debating reductions in working hours, a recent ruling from a Swiss court sets a precedent for defining what constitutes work time. Employees of a Swiss company must clock out when they go to the bathroom. Although the court acknowledged that using the restroom is essential, it determined that employers aren’t obligated to pay for it.
The origin of the dispute. According to an investigation by the Swiss public broadcasting organization RTS, the legal dispute began in 2021 when the Neuchâtel Office of Labor Relations and Conditions (ORCT) inspected compliance with COVID-19 measures at the dial manufacturer Jean Singer & Cie, which employs about 400 people. Inspectors found that workers were clocking in and out for restroom visits, which the company didn’t count as work time and therefore didn’t pay for.
The ORCT argued that this policy “encouraged staff to hold back or avoid hydrating, potentially leading to serious health problems.” In February 2022, the ORCT banned Jean Singer & Cie from continuing this practice, stating that “work interruptions that meet physiological needs” can’t be considered breaks intended for rest and thus violated Swiss labor law, according to The Local.
What the court says. The company appealed the sanction, and the Public Law Court sided with it in a ruling published this month. According to the verdict, the company has the right to require employees to register their bathroom breaks because current law doesn’t explicitly define what constitutes an “interruption” of the workday.
The court’s decision highlights a loophole in the law, which doesn’t prohibit companies from counting bathroom breaks as rest periods. However, the ruling specifies that requiring employees to clock in for bathroom breaks disproportionately affects women. “They face the menstrual cycle, which begins with menstruation. This physiological phenomenon requires adherence to basic hygiene rules and, consequently, more frequent or longer trips to the toilet,” the court said, according to a translation provided by Google, urging the company to take measures to “reduce this inequality.”
What Swiss labor law says. Article 15 of the Swiss Labor Law establishes mandatory rest periods during the workday, which employers must pay for as long as staff remain at the workplace.
Work must be interrupted by breaks of the following minimum durations:
a) 15 minutes if you work more than 5 1/2 hours a day.
b) 30 minutes if you work more than 7 hours daily.
c) 1 hour for workdays longer than 9 hours, with the option to take more than one break.
The regulations don’t specify the reasons for these breaks, only that employees are entitled to regular rest periods.
The company’s position. Pascal Moesch, the legal representative for the 105-year-old family-run business, told RTS that the company believed the issue was generally about “an interruption of work—whether a toilet break, meal break, rest break, phone break, or a nature walk. So regardless of the reason for the break, it requires clocking out.”
Precedent and concerns. The verdict has raised concerns among Swiss institutions, which fear it could set a precedent for other companies to adopt similar policies. Florence Nater, State Councilor in charge of employment, expressed her apprehension to RTS: “I obviously hope this judgment does not have repercussions in other companies that may be tempted to implement this type of practice.”
The Swiss Employers Association views the case as anecdotal. Barbara Zimmermann-Gerster, a senior member of the association, told Swiss media outlet SRF, “It is not the direction in which things should go. Given the shortage of skilled workers, employers must ensure they remain attractive and respond to the needs of employees,” according to an English translation provided by Google.
What does OSHA say about it? U.S. employers may not impose unreasonable restrictions on restroom use, and employees should avoid taking an excessive amount of time during bathroom breaks. The need for restroom access can depend on various factors, such as pregnancy, urinary tract infections, constipation, abdominal pain, diverticulitis, and hemorrhoids. Restroom access frequency varies greatly from person to person, and no federal standard exists for the number of permitted restroom breaks or a specific restroom use schedule.
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