HR’s Porta-Potty Predicament: California Compliance Chaos
From Armchair Lawyer to Bathroom Auditor. A Peculiar Friday at the Office
In the late afternoon on Friday, at the brim of the weekend, my phone shrieked with a call of urgency. It was from a client named Nancy, who, with an audible eye-roll, launched into an account of her current predicament. Here's a condensed retelling of our dialogue.
“Craig, we have a pressing compliance concern that needs an immediate solution. Regrettably, it's not tied to benefits, but I’m betting you might be of assistance.”
“Consider it done, Nancy. I'm all ears.”
“Much appreciated. Here's the crux - city officials at one of our coastal satellite locations have decided to halt our water supply for some pipe repair on Monday and Tuesday. We've arranged for a couple of portable lavatories with washing facilities and ample drinking water for the employees scheduled to work those days. Normally, most of them would be out and about, engaging with our customers, anyway.”
“Well, that seems like a well-thought-out contingency... but, uh-oh, we're striding into Cal OSHA territory. Not exactly my cup of tea without sufficient time to comb through every conceivable complication.”
“That's where it gets interesting. One of our employees, an armchair lawyer perhaps, rang me up to claim that the absence of both ‘hot and cold’ water could violate OSHA regulations. However, I have found that such a requirement is suspended during ‘construction’ periods as it relates to federal OSHA.”
“Seems plausible,” I say as I frantically sleuth through Cal OSHA and wrack my brain as I recall, there are some exceptions where federal OSHA governs instead of Cal OSHA.
“Here's the million-dollar question: Can the city's pipe replacement and repair be classified as ‘construction’, thereby exempting us from the need for hot water on Monday and Tuesday?”
Fiendishly clicking away at my keyboard, “I think you’re covered, Nancy! Your construction exception relates to federal OSHA, it provides that construction work encompasses ‘construction, alteration, and/or repair, including painting and decorating.’ This should qualify as a ‘time of construction.’ Even better, though, that full provision reads:
Restrooms must provide hot and cold running water or lukewarm water, hand soap or similar cleansing agent and warm air blowers or individual hand towels (e.g., paper or cloth). Waterless hand cleaner and towels/rags are not adequate substitutes for soap and water.
“But, I think Cal OSHA would govern this one, anyway, and it states that, ‘Washing facilities shall be maintained in good working order and in a sanitary condition.’
“So you’d clearly meet that definition as well. Now, there are further California requirements for, it looks like, shipbuilders, field workers, and those working with hazardous substances, but that’s not you.”
“No, it’s not. You're a veritable godsend, Craig!”
Cut to 6 PM.
Nancy phones me back, "Craig, guess what? Our diligent employee contacted OSHA, and now I've got an inspector breathing down my neck."
“Affirmative. I suspect a familial or fraternal connection with our ever-vigilant employee. Now, if, and this is a big if, everyone turns up at the office - which is as rare as hen's teeth - we'd need four bathrooms. Apparently, the rules dictate exactly how many johns we need per head based on some sliding scale.”
“Yes, they do,” I respond, shaking my head at the absurdity of it all.
“We've only got two, and our restroom rental company signed off at 4 PM. Their doors stay shut until Monday's 9 AM bell.”
To which all I can muster is, “Oof.”
So, come Monday, Nancy's first order of business will be to frantically ring up the porta-john joint, hoping they can scramble two additional thrones to her location ASAP. If that fails, she'll be forced to dismiss half of her staff for the day, sans pay.
Given the overwhelming annoyance and looming possibility of regulatory fines for not satisfying the overly punctilious demands of California's regulators and certain disgruntled employees, Nancy toyed with the idea of shutting down the office altogether for two days.
But, Nancy is a kind-hearted soul, always striving to do right by everyone. When she stepped into her role as HR Director years ago, she was an enthusiastic idealist with progressive, pro-employee leanings, keen to use her position to foster a nurturing environment for her employees. Needless to say, years of dealing with such situations have tempered her idealism with a touch of hard-nosed pragmatism.
I’m reminded of one of my favorite James Madison quotes, “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
Are you listening, California?