Should employees have to clock out to use the bathroom? It’s a more complicated question than it might seem, based on a saga that played out in Switzerland.
After a drawn-out court battle, Swiss courts decided that it's OK for a company to force workers to clock out to use the bathroom because, as the court wrote in its ruling, "Swiss law does not mention the right of employees to go to the toilet, even though this is a basic physiological need."
The issue first popped up during the COVID-19 pandemic, when the Neuchâtel Office of Labor Relations (ORCT) carried out a check and noted that watchmaker Jean Singer & Cie SA required bathroom breaks to be timed.
ORCT determined that the requirement went against the country’s Federal Labor Act. It demanded that Jean Singer et Cie change the practice of having employees stamp out to go to the bathroom in January 2022.
However, the company refused. In February 2022, it told the ORCT it would not comply with its demands. That April, the ORCT issued a written ban on the company to prevent it from imposing the stamping of toilet breaks.
“Work interruptions that meet physiological needs cannot be considered as breaks,” said its decision. The office argued that the requirement could discourage employees from taking breaks they need and therefore could lead to health issues.
Then, Jean Singer et Cie opposed the ORCT decision before the Department of Employment and Social Cohesion. The company argued that it defined breaks as “interruptions in work necessary for physiological reasons which serve for eating, relaxing and allowing new strength to be gathered.”
“These arguments did not convince the Department of Employment and Social Cohesion,” said Citroni. “In January 2024, it rejected the appeal, considering that going to the toilet should be considered as part of working time.”
Still, Jean Singer et Cie did not back down from its position. After the rejected appeal, it brought the issue to court. That brings us to the Public Law Court of the Cantonal Court ruling, which noted that “the concept of pause is not clearly defined in the law.”
Since the concept’s legal definition is vague, the court ruled there is a gap in the regulation. It said: “This is a gap in the strict sense, in the sense that the legislature has refrained from regulating a point when it should have done so.”
However, the ruling also said that the obligation to clock in and out for bathroom breaks discriminates against women. If the company decides to continue the practice, they would be required to account for gender inequities.
“They are faced with the menstrual cycle, which begins with menstruation,” said the court. “This physiological phenomenon requires compliance with basic hygiene rules and, consequently, more frequent, or even longer, trips to the toilet.”
Citroni said it is the first time this issue has been decided by a court in Switzerland.
“I obviously hope that this judgment does not have any repercussions in other companies that could be tempted to have this type of practice. It would still be a particular signal that would be sent to workers,” Nater said.
“Other problems are brought up to us very regularly. I am thinking in particular of being timed when we go to the toilet, to see how long we take, or having to bring a medical certificate when your manager thinks you have gone to the toilet too often in a working day,” said Ochsner.
According to the Cleveland Clinic, people urinate on average seven to eight times per day. People may also need bathroom breaks for other reasons, including taking some medications and, as the court mentioned, menstruation.
In the U.S., breaks are not required by the Fair Labor Standards Act. However, if employers do permit 5 to 20-minute breaks, they must allow them to be counted as part of their hours worked.
“Note, however, that you need not count unauthorized extensions of authorized breaks as hours worked when you have expressly and unambiguously advised the employee that the break may only last for a specific length of time and that any extension of the break is contrary to your rules and will be punished,” said the U.S. Department of Labor.