Although Novak Djokovic’s quest to achieve tennis history was a big story in this year’s US Open, it was somewhat overshadowed by a controversial bathroom break.

On Day 1 of the 2021 US Open, Andy Murray and Stefanos Tsitsipas fought it out in a five-set thriller.  But before the deciding fifth set began, Tsitsipas took a bathroom break lasting 7 minutes. Tsitsipas went on to win the match, but not without causing a major controversy.  

Tsistipas came under fire by Murray, other players, and even fans who felt Tsistipas took unfair advantage of the vague wording in the 2021 Grand Slam rulebook regarding bathroom breaks and change of attire breaks.   Surprisingly, the rule does not specify a time limit for such breaks, but rather affords a player a “reasonable time” for a toilet break or a change of attire break, or both:

A player may request permission to leave the court for a reasonable time for a toilet break, a change of attire break, or both, but for no other reason.

Toilet breaks should be taken on a set break and change of attire breaks must be taken on a set break. In singles events a player is entitled to one (1) break during a best of three (3) set match and two (2) breaks during a best of five (5) set match. 

Any toilet break taken after a warm-up has started is considered one of the authorised breaks. In all cases, the nearest assigned bathroom must be used. The player is expected to have needed attire available on court.

Additional breaks will be authorised but will be penalised in accordance with the Point Penalty Schedule if the player is not ready to play within the allowed time. Any player abuse of this rule will be subject to penalty in accordance with the Unsportsmanlike Conduct section of the Code of Conduct.

Murray felt the 7-minute break was excessive and influenced the outcome of the match. He expressed his feelings on Twitter. Murray wasn’t alone. Other players also objected to the length of the bathroom break and some suggested that Tsitsipas used his cell phone to receive coaching while in the bathroom.

In response to the controversy, the ATP and UTSA announced that they plan to review the rules surrounding match delays.

HR Lessons
While this bathroom break controversy may appear only relevant to pro tennis, it serves up some important employment law and human resources lessons and issues to consider for employers in all industries.

1. Updating Employee Handbooks

The bathroom controversy serves as an important reminder for employers to re-examine their existing policies and make modifications where appropriate.  As in tennis, circumstances occur in the workplace that necessitate the employer to re-examine a policy and provide clarification or create a new rule.  Policies should be written in a way that employees can easily understand and leave little room for ambiguity or confusion.

Having policies alone is not enough.  It is important for employers to educate their employees about the rules and the consequences for violating them.  It is also important that employers maintain records showing the employee’s receipt of the policies. 

2. OSHA Standards for Bathroom Breaks

Believe it or not, the Federal Government regulates bathroom breaks. The Occupational Safety and Health Administration (OSHA) requires employers to provide all workers with prompt access to a clean restroom. Additional requirements related to restroom facilities and bathroom break policies are outlined in OSHA’s sanitation standards (29 CFR 1910.141, 29 CFR 1926.51 and 29 CFR 1928.110). Under OSHA sanitation standards, employers must:

• Permit workers to leave their work area to use the restroom as needed;
• Provide an acceptable number of restrooms for the current workforce;
• Avoid putting unreasonable restrictions on bathroom use; and
• Ensure that restrictions on restroom use do not cause extended delays.

Employers may not impose unreasonable restrictions on restroom use, and employees should not take an excessive amount of time during bathroom breaks.  A worker’s need to access the restroom can depend on several factors, including fluid intake, air temperature, medical conditions and medications.

The Americans with Disabilities Act may also apply to workers who need accommodations, such as more frequent bathroom breaks, because of a medical condition; other laws may cover pregnant workers. Because restroom access frequency can vary greatly from person to person, no federal standard for the permitted number of restroom breaks or a specific restroom usage schedule exists. 

3. Wage and Hour Standards for Bathroom Breaks

Federal wage and hour law under the Fair Labor Standards Act (FLSA) does not require lunch, coffee breaks or bathroom breaks. If, however, employers offer short breaks (usually lasting about 5 to 20 minutes), the FLSA considers the breaks as compensable work hours that would be included in the sum of hours worked during the workweek and considered in determining if overtime was worked.  

Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished. 

Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

4. Social Media Use by Employees
Like Murray, employees use social media as a platform to lodge complaints, often at the frustration of their employers.  As shared in a prior Blog Post, there are limits, however, on the discipline an employer can impose on an employee who complains through social media.

Federal labor law prohibits an employer from interfering with employees who come together to discuss work-related issues for the purpose of collective bargaining or other mutual aid or protection.  Social media has become one of the primary avenues through which employees engage in such activity.  What constitutes protected activity can be a gray area, so it is prudent to seek legal counsel before disciplining an employee over a social media post.

Conclusion: Bathroom Breaks Not a Trivial Matter
The controversy at the US Open reinforces the importance of implementing sound rules and revising them when circumstances require.  Employers should be aware of the federal regulations that govern bathroom breaks and social media and seek legal advice when implementing policies on these issues.  

As always, please let me know if I can help.