Sunday, April 7, 2013

Lavatory Law


Legal Issues and IBD


There are a few unique legal issues surrounding IBD that folks may or may not be aware of.  One is positive (the trend toward bathroom access), the second is negative (the ability of private entities to set their own restrictions on the use of restrooms).  What does this mean for the average IBD patient?

Access to bathrooms is something that is almost always on the mind of anyone with IBD.  It effects when, where, and how we travel, eat, and generally live life.  Most of us have developed restroom-radar – the ability to always know when and where the closest bathroom is.  Unfortunately, not all of those restrooms are legally accessible to those with Crohn’s and Ulcerative Colitis.

Because most restrooms are in private establishments (restaurants, retail stores, gas stations, etc…) their owners are free to establish whatever restrictions they would like on their use.  All states have requirements for restrooms at food establishments that allow dining in, but the owners can choose to limit their use to paying customers only.  There are good reasons (from the business’s perspective) for doing so:  there is a cost to maintain clean restrooms, they may attract undesirable individuals, and may increase liability for the establishment. 

Building codes for restaurants require restrooms be made available, but not necessarily adequate bathrooms for those with IBD.  Virginia State Code, for example, requires the following:

§ 3.2-5109. Washrooms and toilets.

Any place where food is manufactured, prepared, exposed, or offered for sale shall have a convenient washroom and toilet of sanitary construction, but such toilet shall be entirely separate and apart from any room used for the manufacture or storage of food products.

The requirement does expand beyond sit-down restaurants, but doesn't give a lot of detail on how many toilets (or their condition).  For the number of toilets, most states have adopted the International Building Code.  The IBC requires a number of toilets based on the number of occupants and the type of establishment (1 per 40 occupants for a bar, 1 per 75 occupants for a restaurant).  Normally, because the facility counts are the same for men and women, men have more facilities available.  For male IBD sufferers, however, the facilities may substitute a urinal for 50% of the required toilets.  This means that there may only be one toilet for a restaurant with 300 person occupancy.  If that toilet is out or occupied, you may be out of luck (an unfortunate consideration in choosing places to eat).(1)  Because urinals are cheaper and easier to maintain, most restaurants/bars will take this option.

What about non-restaurant establishments?  Until recently, there was no legislation that offered any rights to those with medical conditions access to bathrooms in retail establishments.  Enter Ally Bain. 
Everyone stateside with IBD owes a debt of gratitude to Ally Bain and her mother Lisa.  When she was younger, Ally needed to use the restroom in a retail establishment and was denied by the management.  As a result, she had the same accident many of us have had at one point or another.  Instead of taking it lying down, Ally and her mother fought and passed the first of what is known as “Ally’s Law” legislative changes in Illinois.(2)  Since then, 13 other states have passed similar laws:

·         Colorado
·         Connecticut
·         Illinois
·         Kentucky
·         Massachusetts
·         Michigan
·         Minnesota
·         Ohio
·         Oregon
·         Tennessee
·         Texas
·         Wisconsin
·         Washington

Ally’s Law, or the Restroom Access Act, says something similar in each state:

     Section 5. Definitions. In this Act:
    "Customer" means an individual who is lawfully on the premises of a retail establishment.
    "Eligible medical condition" means Crohn's disease, ulcerative colitis, any other inflammatory bowel disease, irritable bowel syndrome, or any other medical condition that requires immediate access to a toilet facility.
    "Retail establishment" means a place of business open to the general public for the sale of goods or services. "Retail establishment" does not include a filling station or service station, with a structure of 800 square feet or less, that has an employee toilet facility located within that structure.
    Section 10. Retail establishment; customer access to restroom facilities. A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if the toilet facility is reasonably safe and all of the following conditions are met:
        (1) The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device.
        (2) Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility.
        (3) The retail establishment does not normally make a restroom available to the public.
        (4) The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment.
        (5) A public restroom is not immediately accessible to the customer.

    Section 15. Liability.
    (a) A retail establishment or an employee of a retail establishment is not civilly liable for any act or omission in allowing a customer that has an eligible medical condition to use an employee toilet facility that is not a public restroom if the act or omission meets all of the following:
        (1) It is not willful or grossly negligent.
        (2) It occurs in an area of the retail establishment that is not accessible to the public.
        (3) It results in an injury to or death of the customer or any individual other than an employee accompanying the customer.
    (b) A retail establishment is not required to make any physical changes to an employee toilet facility under this Act. 
    Section 20. Violation. A retail establishment or an employee of a retail establishment that violates Section 10 is guilty of a petty offense. The penalty is a fine of not more than $100.

The law is a great addition – I suggest you carry your CCFA card and a copy of the law in your wallet.  While the penalties are not great, the negative publicity may be.

Multiple other states have similar laws in process.  My own Virginia was a disappointment (except Delegate Rob Krupicka, who introduced the bill) – they voted it down last year, and the there was hardly a public outcry (see http://hamptonroads.com/2013/01/bathroom-bill-ends-where-it-belongs-down-drain for a particularly insensitive response).  I suggest y’all write your local delegates in your states to see if there is a similar law on the legislative agenda (or suggest one!)

Aside from trying to get a law passed, if you are denied access to a restroom try contacting the franchise owner or corporate affairs and educate them.  If it is a small business, contact the Better Business Bureau (assuming the owner is the one that denied you – otherwise, talk to the owner and educate them). 
My personal favorite location is hotels – they are open 24 hours, have lobbies that are open and have restrooms that are generally clean.

Bottom Line


·         In general, there aren’t a lot of laws requiring individuals to allow you to use their restrooms.
·         Ally’s Law and a few similar laws provide some relief – if you don’t have a local version, contact your representative.

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http://www.girls-with-guts.org/2012/10/31/the-origins-of-the-restroom-access-act-by-ally-bain/

2 comments:

  1. We have a 'Can't Wait' card here in the UK which we have found works as a 'pass' to use lavatories in restaurants, cafes, bars, retail outlets etc for people who just 'Can't Wait'!

    We have more details and support on our website for young people who have been diagnosed with IBD on our website - www.meandibd.org - by leading UK charity Crohn's and Colitis UK. Hope you don't mind us hijacking the comments section, just spreading the word. Most info will count both sides of the Atlantic.

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  2. Thank you very much for the pointer. The Crohn's and Colitis Foundation of America (the leading charity on this side of the pond) gives a similar membership card. I've generally had good luck with the card and with most people being reasonable and understanding when I've needed to request emergency access to a WC, but every now and then I've received a "no". In general, it has been harder to gain access in high crime areas and in locations where the proprietors want to discourage loitering over here.

    If anyone else has another counterpart organization to the Crohn's and Colitis UK in their country please post!

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