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Doing the [Porta]Potty Dance: Fair Employment and Housing Council Votes to Adopt Emergency Rule regarding Signage for Single User Non-Flush Toilets to Resolve Conflict with OSHA Regulations

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

At its meeting on July 17, 2017, the Fair Employment and Housing Council (FEHC) addressed a conflict between its regulations and OSHA’s regulations, regarding gender-neutral restroom facilities.

AB 1732, enacted as Health and Safety Code section 118600, which applies to single-user toilet facilities.  Section 118600 defines single-user toilet facilities as those that have only one “water closet” and (zero or) one urinal.  All such single-user toilet facilities must be re-designated as “gender neutral” under this new law.  OSHA’s regulations, under title 8 section 1526 (construction jobsites), section 3364 (general industry), section 3457 (agricultural operations), and section 5192 (hazardous waste operations and emergency response) conflict with this rule, to the extent that they require employers to provide a certain number of separate toilet facilities for males and females based on the numbers of employees of each sex.

The related DFEH Regulation, section 11034(e)(2)(B), currently reads “Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.”  This is consistent with Health and Safety Code section 118600. 

OSHA has announced, on its website here <https://www.dir.ca.gov/dosh/toilet-facilities-FAQ.html> that it will enforce its regulations in a manner to make AB1732 consistent with OSHA regulations for flush toilets: “Health and Safety Code section 118600 takes precedence over the requirements of Title 8 sections 1526, 3364, 3457, and 5192 in cases where employers provide single-user toilet facilities with flush toilets for their employees. In those situations, Cal/OSHA still enforces the total numbers of toilet facilities required for males and females combined, as well as the individual numbers required for males and females separately, as provided in Title 8 sections 1526, 3364, 3457, and 5192, but no longer enforces the requirement that a toilet facility with a flush toilet be designated as single-gender if it is single-user.”

In that same FAQ, however, OSHA states that “toilet facilities that are multiple-user or that contain other than a flush toilet (e.g., chemical toilets, recirculating toilets, combustion toilets, biological toilets, and sanitary privies) are not covered by section 118600 and must still be provided separately for males and females.” Therefore, OSHA will enforce its regulations for non-flush toilets – like a port-a-potty – for those industries.

The FEHC proposed an amendment to FEHA regulation, section 11034(e)(2)(B), on an emergency basis, to eliminate the conflict with OSHA regulations with respect to privies, chemical toilets, and other “non-water carriage disposal facilities” (toilets that do not flush with water).  Apparently due to very high percentage of men in these industries, there are concerns about health and safety if such portable toilets out in the field were required to be designated as gender-neutral.

Section 11034(e)(2)(B) currently reads:

B.  Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.

To address this inconsistency with OSHA’s regs, the council considered, and voted to submit an emergency rulemaking proposal to the Office of Administrative Law for an emergency rulemaking to modify 11034(e)(2)(B).

The proposed new language that will be submitted to the OAL is underlined:

11034(e)(2)(B) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.  This subsection does not apply to nonwater carriage disposal facilities in those work places covered by California Code of Regulations, title 8, sections 1526 (construction), 3364 (general industry), 3457 (agricultural operations), and 5192 (hazardous waste operations and emergency response) which require employers to provide separate toilet facilities for males and females based on the numbers of employees of each sex. However, all other subsections of this section apply to such employers.

The intent of the last sentence is to make clear that persons may still use the facility corresponding to the employee’s gender identity or expression (subsection (e)(2)(A)), regardless of the signage on the door.

The Council voted that the department should submit this proposed change to the OAL for emergency rulemaking authorization immediately.

Once submitted, the proposed rule will undergo a 5-day public comment and OAL review. If granted by the OAL, the emergency rule will become effective upon filing with the Secretary of State and is effective for 180 days.  This gives the agency time to make the emergency regulation permanent through its regular rulemaking process.