UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

------: EDWARD C. HUGLER, Acting Secretary of : Labor, United States Department of Labor,1 : : Complainant, : : v. : : SWIFT PORK COMPANY, : OSHRC Docket No. 16-0510 and its successors, : : Respondent, : : UFCW, Local No. 431, : : Authorized Employee : Representative . : : ------

THE SECRETARY’S MEMORANDUM IN OPPOSITION TO RESPONDENT’S MOTION FOR SUMMARY JUDGMENT

Complainant, EDWARD C. HUGLER, Acting Secretary of Labor, United States

Department of Labor (“Secretary”), respectfully submits this response in opposition to Swift

Pork Company’s Motion for Summary Judgment, filed January 27, 2017. In support thereof, the

Secretary states as follows:

INTRODUCTION

This case arose from OSHA’s inspection of a Swift Pork Company (“Swift Pork”) plant

in Beardstown, Illinois, on January 6, 2016, which revealed that Swift Pork violated 29 C.F.R.

1 This action was commenced in the name of Thomas E. Perez, Secretary of the Department of Labor. Mr. Perez is no longer Secretary of Labor and Edward C. Hugler is now the Acting Secretary. Therefore, Mr. Hugler is automatically substituted for Mr. Perez as the Complainant, pursuant to Fed. R. Civ. P. 25(d), and the caption of this action is amended accordingly. § 1910.141(c)(1)(i) (“the Sanitation standard”) by imposing unreasonable restrictions on employees’ use of toilet facilities. These restrictions included requiring employees to wait an

unreasonable period of time after telling a supervisor they needed to use the toilet; pressuring

employees whose medication increased their need to use the toilet to adjust the time they took

their medications or reduce their water intake; and penalizing employees for leaving the

production line to use the toilet, visit the nurse, or sharpen a knife more than once per day or

more than six times in five days. As a result of these restrictions, employees have reduced their

food and water intake, worn adult diapers during the work day for fear they would be disciplined

for even routine toilet use, and even soiled themselves on the production line. Based on its

investigation, OSHA issued a citation alleging that Swift Pork’s unreasonable restrictions on the

use of toilet facilities violated the Sanitation standard’s requirement that toilet facilities “be

provided.” 29 C.F.R. § 1910.141(c)(1)(i).2

Swift Pork argues that it is entitled to summary judgment for two reasons. First, it claims

that the only basis for the citation is a 1998 Memorandum in which OSHA explained its

interpretation of the Sanitation standard to prohibit unreasonable restrictions on employee use of

toilet facilities. According to Swift Pork, the 1998 Memorandum was an improperly promulgated

“legislative rule,” and the citation applying it must therefore be vacated. Second, Swift Pork

claims that the standard as interpreted by the Secretary is void for vagueness. As we demonstrate

below, these arguments are utterly without merit. As a threshold matter, Swift Pork was cited for

violating the Sanitation standard, not the 1998 Memorandum. Accordingly, it is the Secretary’s

interpretation of the Sanitation standard as embodied in the 2016 citation that is at issue before

2 The standard states, in relevant part, “toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section.” Table J-1 specifies the minimum number of toilet facilities that must be provided based on the number of employees.

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the Commission. The Supreme Court has squarely recognized that the issuance of a citation

reflecting the Secretary’s interpretation of a standard is an exercise of delegated lawmaking

power independent of the publication of agency guidance materials. The Court recognized that

the Secretary regularly uses “less formal means” of interpreting regulations prior to issuing

citations, including issuing “interpretive rules” and agency enforcement guidelines, to provide

notice to regulated parties of the Secretary’s construction of potentially ambiguous regulatory

language. The 1998 Memorandum is just such an “interpretive rule” in that it simply interpreted

the term “provide” in the Sanitation standard and did not impose any substantive requirements

independent of the underlying standard And the Sanitation standard is not void for vagueness

because a reasonable employer familiar with the standard and OSHA’s public statements

explaining its meaning would understand that the standard requires employers not only to install

the specified number of toilets but also to prohibit unreasonable restrictions on employees’

ability to use them when they need to do so.

Accordingly, Swift Pork has not demonstrated that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

STATEMENT OF UNDISPUTED FACTS

The Secretary does not contest Paragraphs 1–3, 5, 10, 12, 14–15, or 16 of Swift Pork’s

Statement of Undisputed Facts. The Secretary asserts, however, that Paragraphs 4, 6, 11, 13, and

17 are more accurately stated as follows:

4. The Secretary does not dispute that OSHA issued a one item, Serious citation alleging that Swift Pork violated 29 C.F.R. § 1910.141(c)(1)(i); however, he disputes the insertion of the word “available” into the citation. The subject citation states, “Toilet facilities were not provided in accordance with TABLE J-1 of this Section: On or about January 6, 2016,

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employees were exposed to adverse illnesses and/or health effects, because of the employer

imposed unreasonable restrictions on the use of the toilet facilities. See Citation, attached as

Exhibit A.

6. The Secretary admits that Swift Pork had more toilet facilities present at the

Beardstown plant than required by the Sanitation standard, but disputes that those toilet facilities were “available.”

11. The existence of the 1998 Memorandum is undisputed. See Mem. from John B.

Miles, Jr. (April 6, 1998) (“1998 Memorandum”), attached as Exhibit B. However, the Secretary disputes Swift Pork’s claim that the 1998 Memorandum, “for the first time since the standard’s

1971 promulgation, reads this ‘reasonable access’ requirement into 1910.141(c)(1)(i).” Resp’t’s

Mem. Supp. Summ. J. (Resp’t’s Mem.) 5. The term “reasonable access” is not used in the 1998

Memorandum. Ex. B.

13. The Secretary disputes Swift Pork’s characterization of Section 1.2 of USA

Standard Requirements for Sanitation in Places of Employment, USAS Z4.1 – 1968 (Am. Nat’l

Standards Inst. 1968) (“ANSI Z4.1”), as “intended to relate only to ‘design and construction of industrial and commercial buildings.’” See Resp’t’s Mem. 6 (quoting the forward to ANSI Z4.1).

The standard itself explicitly states that its purpose is “to prescribe minimum sanitary requirements for the protection of the health of employees in establishments covered by this standard.” The forward to the standard quoted by Swift Pork explicitly states that “[t]his forward is not a part of USA Standard Requirements for Sanitation in Places of Employment, Z4.1 –

1968.” See ANSI Z4.1, attached as Exhibit C.3

3 The United States of America Standards Institute (USASI) changed its name to American National Standards Institute, Inc. (ANSI) in 1969, at which point former USAS Z4.1 – 1968 became ANSI Z4.1 – 1968.

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17. OSHA did not go through notice and comment rulemaking, which the APA and the OSH Act only require for legislative rules, when it issued the 1998 Memorandum.

STATEMENT OF ADDITIONAL FACTS ALLEGED BY THE SECRETARY

The Secretary alleges the following facts that relate to whether the restrictions Swift Pork imposed on employee use of toilet facilities at the Beardstown plant were unreasonable and therefore violated the Sanitation standard. Swift Pork does not dispute these facts in its

Memorandum in Support of Respondent’s Motion for Summary Judgment or argue that the restrictions it imposed on employee use of toilet facilities were reasonable. The Secretary believes these are material facts in dispute, and he is entitled to a hearing on the merits to prove them.

On January 6, 2016, OSHA Compliance Officer (CSHO) Diana Strain4 conducted an inspection of Swift Pork’s Beardstown plant. OSHA’s investigation revealed that Swift Pork’s implementation of its restroom access policy placed unreasonable restrictions on employee use of toilet facilities at the Beardstown plant, exposing employees to a risk of serious health effects.

See OSHA Investigation Forms 1A and 1B, attached as Exhibit D. Employees told CSHO Strain that they were often required to wait more than 30 minutes to be relieved from their duty station after telling a supervisor they needed to use the toilet, and some employees stated they were never relieved at all. In addition, employees were disciplined for leaving the line more than once per day, or 6 times in 5 days, whether to use the toilet, visit the nurse, or sharpen knives in the knife room. Employees suffering from medical conditions requiring more frequent use of toilet facilities were pressured by management to use the facilities less, to adjust the time they took their medications, and to drink less water to suppress their need to use the toilet facilities. Even

4 At the time of the inspection, Diana Strain was known as Diana Lopez.

5 employees without medical conditions adjusted their intake of food and water to avoid using the toilet facilities while working for fear of reprisal for even routine toilet use. See Ex. D; see also

Redacted Notes of Emp. Interviews, attached as Exhibit E.

Swift Pork’s unreasonable restrictions on the use of toilet facilities led to employees being afraid to ask permission to use the toilet facilities when the need arose, employees soiling themselves, and employees wearing adult diapers to avoid having to leave the production line to use the toilet facilities. Restricting employees’ access to toilet facilities may result in adverse health effects, such as urinary tract infections and dehydration. See Exs. D, E.

In summary, OSHA’s investigation revealed that Swift Pork imposed unreasonable restrictions on employee use of the toilet facilities at the Beardstown plant and thus exposed employees to a risk of serious adverse health effects in violation of 29 C.F.R. §

1910.141(c)(1)(i).

ARGUMENT

I. Summary Judgment Standard

Summary judgment is appropriate only where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “When determining if there is a genuine factual dispute, the fact finder must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party.” Ford Motor Co. - Buffalo Stamping Plant, 23 BNA

OSHC 1593, 2011 WL 3923734, at *1 (No. 10-1483, 2011) (citing U.S. v. Diebold, Inc., 369

U.S. 993, 994 (1962)).

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II. OSHA Cited Swift Pork For Violating a Mandatory Standard, and the 1998 Memorandum Did Nothing More Than Interpret That Standard; Therefore It Did Not Require Notice and Comment Rulemaking.

Swift Pork’s primary argument is that the citation is based solely on an interpretation set

out in the 1998 Memorandum and must be vacated because the Memorandum was an invalidly

promulgated “legislative rule.” Resp’t’s Mem. 2. Swift Pork is wrong out of the gate. OSHA cited Swift Pork for violating the Sanitation standard, not for violating the 1998 Memorandum.

Thus, the issue here is the reasonableness of the Secretary’s interpretation of the Sanitation standard embodied in the 2016 citation. The Supreme Court has made clear that the Secretary’s issuance of a citation embodying his interpretation of a standard is an exercise of delegated lawmaking power and is entitled to deference if reasonable. Martin v. OSHRC, 499 U.S 144,

157–58 (1991). As the Court also made clear, “the Secretary regularly employs less formal means of interpreting regulations prior to issuing citations” including issuing “interpretive rules.”

Id. at 157. These less formal interpretations may be consulted to evaluate the consistency of the

interpretation embodied in the citation as well as the adequacy of notice to regulated parties. Id.

at 157–58.

The 1998 Memorandum is a classic example of an interpretive rule because it merely

advised the public of OSHA’s construction of the Sanitation standard’s requirement to “provide”

toilet facilities. As an interpretive rule, the 1998 Memorandum did not itself create any legal

duties and was exempt from notice and comment requirements. The critical feature of an

interpretive rule is that it “advise[s] the public of the agency’s construction of the statutes and

rules which it administers.” Perez v. Mortg. Bankers Ass’n, 135 S.Ct. 1199, 1204 (2015); see also Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 1993) (“A statement seeking to interpret a statutory or regulatory term is . . . the quintessential example of an interpretive rule.”).

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As such, interpretive rules “only remind[ ] affected parties of existing duties” and have no legal effect independent of the underlying regulation or statute. Metro. Sch. Dist. of Wayne Twp.,

Marion Cty., Ind. v. Davila, 969 F.2d 485, 490 (7th Cir. 1992) (quoting United Tech. Corp. v.

EPA, 821 F.2d 714, 718 (D.C. Cir. 1987)). By contrast, “legislative rules have effects completely independent of the [underlying regulation or] statute.” Id. (emphasis in original). In determining

3 whether a rule is interpretive or legislative, courts consider (1) the agency’s characterization of the rule, (2) whether the agency relied on the typical tools of statutory interpretation in developing the rule, (3) whether the agency intended to create rights or duties independent of the underlying text,5 and (4) whether the rule amends a prior legislative rule. See, e.g., id. at 489–92;

Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). As explained below, the 1998 Memorandum satisfies all of the criteria necessary to classify it as an interpretive rule.

A. OSHA Accurately Characterized the 1998 Memorandum as an Interpretation of the Sanitation Standard.

The “starting point” in analyzing whether a rule is legislative or interpretive is the

Agency’s own characterization of the rule. See Davila, 969 F.2d at 489. “The agency’s characterization is not dispositive, but is a relevant factor.” Id. Here, the 1998 Memorandum states: “This memorandum explains OSHA’s interpretation that [the Sanitation] standard requires employers to make toilet facilities available so that employees can use them when they need to do so.” Ex. B. Thus, OSHA’s own characterization of the 1998 Memorandum demonstrates that it is an interpretive rule.

5 This inquiry can also be phrased as “whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties.” Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).

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B. The 1998 Memorandum is Prototypically Interpretive Because It Explains Potentially Ambiguous Language in the Sanitation Standard.

The 1998 Memorandum “represents the paradigmatic case of an interpretive rule”

because it simply explains OSHA’s interpretation of potentially ambiguous text in the Sanitation

standard. See Davila, 969 F.2d at 492. Specifically, the 1998 Memorandum explains that the

requirement in OSHA’s Sanitation standard that a certain number of toilet facilities “shall be

provided” means employers may not impose unreasonable restrictions on employee use of the

facilities. See Ex. B. Because the Sanitation standard does not define “provide” explicitly, OSHA has the authority to resolve any ambiguity in the term’s meaning. See Martin, 499 U.S. at 144

(agency’s authority to interpret its own regulations is a component of its delegated lawmaking

powers).

In Davila, the Seventh Circuit determined that a letter of interpretation issued by the U.S.

Department of Education was an interpretive rule, not a legislative rule, because it simply

explained to the public what the Agency believed the statute it was authorized to interpret

required using traditional tools of statutory construction. Davila, 969 F.2d at 490 (interpreting

Individuals with Disabilities Education Act requirement to provide a free appropriate public

education to all children with disabilities as requiring school districts to provide educational

services to children with disabilities who are expelled or suspended for an extended period of

time for reasons unrelated to their disabilities). Likewise here, the 1998 Memorandum advises

the public of how OSHA interprets the language in the Sanitation standard. See Ex. B. It is therefore a classic interpretive rule.

For example, the 1998 Memorandum noted that the purpose of the Sanitation standard is

“to ensure that employers provide employees with sanitary and available toilet facilities, so that

employees will not suffer the adverse health effects that can result if toilets are not available

9 when employees need them.” Id. The Memorandum further explains that “a clear intent of the requirement in Table J-1 that adequate numbers of toilets be provided for the size of the workforce is to assure that employees will not have to wait in long lines to use those facilities.

Timely access is the goal of the standard.” Id. This purpose would plainly be frustrated if employers could comply with the standard simply by installing the required number of toilets but prevent employees from using them for extended periods. In light of this context, the 1998

Memorandum referred to definitions of the term “provide” in the dictionary and relevant case law. According to Webster’s New World Dictionary (3d College Ed. 1998) and relevant case law, the word “provide” means “make available.”6 See Ex. AB Therefore, OSHA sensibly reasoned that the standard not only requires employers to install the required number of toilets but also prohibits unreasonable restrictions on their use. Id. “Toilets that employees are not allowed to use for extended periods cannot be said to be ‘available’ to those employees.”7 Id.

Swift Pork argues that there is no linguistic link between the text of the Sanitation standard and the “reasonable access” requirement. Resp’t’s Mem. 18. Swift Pork’s characterization of the interpretation in the 1998 Memorandum as requiring “reasonable access”

6 See Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (10th Cir. 1984); Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1119 (10th Cir. 1978); Sec’y v. Baker Concrete Constr. Co., 17 BNA OSHC 1236, 1239 (No. 93-606, 1995) (concurring opinion; collecting cases); Contractors Welding of W. New York, Inc., 15 BNA OSHC 1249, 1250 (No. 88-1847, 1991) (same).

7 The 1998 Memorandum also evaluated the structure of the standard, another traditional interpretive tool, comparing the requirements in section 1910.141(c)(1)(ii) for mobile work crews to those in section 1910.141(c)(1)(i) for employees at fixed worksites. See Ex. B. OSHA reasonably concluded that because section 1910.141(c)(1)(ii) makes clear that the standard requires employers to provide mobile work crews and employees at normally unattended locations “immediate[]” access to “nearby” toilet facilities, section 1910.141(c)(1)(i) must also require employers to provide employees prompt access to toilet facilities at fixed workplaces. “[Section 1910.141(c)(1)(ii)] was obviously intended to provide [mobile work crews and employees at normally unattended work stations] with protection equivalent to that [section 1910.141(c)(1)(i)] provides to employees at fixed worksites. Read together, the two provisions make clear that all employees must have prompt access to toilet facilities.” Id.

10 is misleading.8 The Memorandum is specifically concerned with employer policies denying employees permission to use toilet facilities when they need to. Id. (“This memorandum explains

OSHA’s interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so.”).9 The Memorandum thus explains

OSHA’s interpretation of the standard to prohibit employers from imposing unreasonably restrictive toilet-use policies. This prohibition flows quite naturally from the standard’s express requirement that toilet facilities be “provided.” As discussed above, to “provide” something is to make it available for use. Toilet facilities have not been “provided” if they are not available for use because of employer restrictions on when employees can leave the production line. Swift

Pork does not argue that OSHA’s use of the dictionary definition of “provide” is inappropriate, nor does it offer an alternative definition of the term.

Swift Pork also claims that the Secretary’s interpretation cannot be linked to the text of the standard because ANSI Z4.1, the national consensus source standard for section

1910.141(c)(1)(i) pursuant to section 6(a) of the Act, was concerned solely with the design and construction of toilet facilities. Resp’t’s Mem. 18–19. This claim is patently false: the explicitly stated purpose of ANSI Z4.1 was “to prescribe minimum sanitary requirements for the protection

8 Swift Pork uses the phrase “reasonable access” in quotations throughout its memorandum in support of summary judgment to describe the Secretary’s interpretation in the 1998 Memorandum and the 2016 citation, even though the phrase is not a quotation from these documents. For example, Swift Pork asserts that “[i]n the 1998 Memorandum OSHA first imposed on employers the vague obligation of affording ‘reasonable access’ to toilet facilities,” and that “[t]he ‘reasonable access’ obligation embodied in the Citation’s alleged violation description (‘AVD’) is not a valid, enforceable part of 29 CFR 1910.141(c)(1)(i).” Resp’t’s Mem. 2. The phrase “reasonable access” does not appear anywhere in either the 1998 Memorandum or the AVD.

9 See also the discussion under the heading Citation Policy in the 1998 Memorandum, which states that “[e]mployee complaints of restrictions on toilet facility use should be evaluated on a case-by-case basis to determine whether the restrictions are reasonable.”

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of the health of employees in establishments covered by this standard.” See Ex. C. Swift Pork

ignores this official statement of purpose and instead relies on the forward to the standard, which

also explicitly states that “[t]his forward is not part of USA Standard Requirements for Sanitation

in Places of Employment, Z4.1 – 1968.” Id. The forward simply states that the standard was intended for use by those “concerned with the design and construction of industrial commercial buildings,” including employers. Id. The forward did not state that the only purpose of the standard was to provide “design and construction criteria” without regard to employee health.

Swift Pork’s interpretation would completely undermine the purpose of the ANSI standard because installing toilet facilities cannot possibly protect employee health if employers can impose unreasonable restrictions on employees’ ability to use them.10

In sum, the 1998 Memorandum simply explains OSHA’s interpretation of ambiguous language in the Sanitation standard, consistent with the purpose, language, and structure of the standard. It therefore “represents the paradigmatic case of an interpretive rule.” See Davila, 969

F.2d at 492.

C. The 1998 Memorandum Does Not Add New Substantive Requirements.

The 1998 Memorandum does not establish any new rights or obligations independent of

the Sanitation standard, further demonstrating that it is not a legislative rule requiring notice and

comment rulemaking. See, e.g., Davila, 969 F.2d at 490 (rule is legislative “if by its action the

agency intends to create new law, rights or duties”) (quoting United Techs. Corp., 821 F.2d at

10 Swift Pork also challenges the Secretary’s determination that sections (c)(1)(i) and (c)(1)(ii) were meant to provide equivalent protection, claiming that “[t]he analogy to section (ii) is inappropriate and misplaced” because section (c)(1)(ii) is an exception to section (c)(1)(i). Resp’t’s Mem. 20. But section (c)(1)(ii) was obviously meant to ensure that mobile work crews and employees at normally attended work locations have equivalent access to sanitary bathrooms as employees at fixed work stations. See supra n.7; Ex. B. The Mortgage Bankers decision Swift Pork cites does not support its claim that the Secretary’s contextual interpretation of section 1910.141(c)(1)(i) represents an attempt to skirt “necessary procedural requirements.”

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718). Rather, the 1998 Memorandum “simply explained what the [standard] already requires.”

See id. at 493.

This memorandum explains OSHA’s interpretation that [the Sanitation] standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities. OSHA believes this requirement is implicit in the language of the standard and has not previously seen a need to address it more explicitly.

See Ex. B. All duties and obligations arise, not from the Memorandum, but from the text of section 1910.141(c)(1)(i) itself, which has not changed since the standard’s inception. The

interpretation does not go beyond the language of the standard and therefore does not create a

new legislative rule. See Davila, 969 F.2d at 492; see also Fertilizer Inst. v. EPA, 935 F.2d 1303,

1308 (D.C. Cir. 1991) (rule is legislative when it goes beyond the text of existing

requirements).11 Therefore, even if the Commission holds that the Memorandum should not have

been issued, OSHA would still have issued the instant citation because the standard itself

prohibits Swift Pork’s actions.

In Fertilizer Institute, the D.C. Circuit considered an EPA rule that set reporting

requirements for the release of certain hazardous substances into the environment, pursuant to

the Comprehensive Environmental Response, Compensation and Liability Act of 1980

11 OSHA has consistently interpreted section 1910.141(c)(1)(i) as prohibiting unreasonable restrictions on toilet use, both before and after issuing the 1998 Memorandum. OSHA explained in letters of interpretation issued in 1976 and 1983 that although “[t]here are no specific distance or location requirements for toilet facilities in 29 CFR 1910.141(c),” employers are required to allow employees “unobstructed free access to the toilet facilities.” See Standard Interpretation Letter from John K. Barto to A. Quayle (March 11, 1976) (attached as Exhibit F); Standard Interpretation Letter from Thorne G. Auchter to Jeane E. Fisher (July 5, 1983) (same) (attached as Exhibit G). Every subsequent statement OSHA has made about this issue has taken a consistent position. See Ex. B; Standard Interpretation Letter from Richard E. Fairfax to Marc Linder (April 23, 2003) (attached as Exhibit H); Standard Interpretation Letter from Richard E. Fairfax to Charles R. Kubly (Feb. 2, 2006) (attached as Exhibit I); Standard Interpretation Letter from Thomas Galassi to Ryan Wiens (Mar. 10, 2014) (attached as Exhibit J).

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(CERCLA). 935 F.2d at 1306. At issue, among other challenges, was the agency’s interpretation of the term “release” announced in the rule. Id. at 1306.The petitioners alleged that the EPA’s interpretation was a legislative rule, in part because it “create[d] a set of duties that did not previously exist.” Id. at 1309. The court found that the petitioners’ argument “reflect[ed] a fundamental misunderstanding of the distinction” between an interpretive rule and a legislative rule. Id. at 1307. According to the court, “the proper focus in determining whether an agency act is legislative is the source of the agency’s action, not the implications of that action.” Id. at

1308. Accordingly, because the rule simply “clarif[ied] the meaning of the term ‘release’ as defined by CERCLA,” the source of the underlying requirement, it “fit comfortably within the category of an interpretive rule,” despite having the effect of creating new duties. Id. A fortiori, this memorandum, which did not create any new requirements, was also not legislative. The source of the mandatory obligations identified in the 1998 Memorandum is the Sanitation standard itself; the memorandum is simply the Secretary’s explanation of how he interprets the standard. See Davila, 969 F.2d at 490.

Nor is the 1998 Memorandum a legislative rule simply because it uses mandatory language and “is treated as binding in practice.” See Resp’t’s Mem. 13–18. The Seventh Circuit explicitly rejected a similar argument in Davila. There, the court reasoned that “[a]ll rules which interpret the underlying statute must be binding because they set forth what the agency believes is congressional intent.” 969 F.2d at 493. Indeed, “all rules are ‘binding’ on the regulated parties in the sense that they set, for the time, the legal minima of behavioral standards.” Id. (quoting

Alcaraz v. Block, 746 F.2d 593, 614 (9th Cir. 1984)); see also Cent. Texas Tel. Co-op., Inc. v.

FCC, 402 F.3d 205, 214 (D.C. Cir. 2005) (“to the extent petitioners are contending that interpretive rules cannot be conduct-altering, the law is to the contrary”). The Sanitation standard

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is a mandatory, “binding” standard. Therefore, any interpretation of its terms must necessarily be

“binding” in the sense that it explains what the underlying standard requires.

Swift Pork’s confusion on this point may arise from a failure to recognize the distinction between an interpretive rule, which interprets mandatory language in an underlying regulation or statute, and an agency policy statement, which articulates an agency policy untethered to any underlying binding requirement. See Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir.

1997) (“[I]nterpretative rules and policy statements are quite different agency instruments.”).

Most of the cases on which Swift Pork relies involved statements of policy that did not purport to interpret statutory or regulatory text and are therefore inapposite. See, e.g., McLouth Steel Prods.

Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988); Comm. Nutrition Inst. v. Young, 818 F.2d 345

(D.C. Cir. 1987); Am. Bus. Ass’n v. U.S., 627 F.2d 525 (D.C. Cir. 1980). For example, in

McLouth Steel, the court considered the EPA’s adoption of a particular scientific model (the

VHS model) for computing probable contamination levels of certain hazardous waste products.

838 F.2d at 1319. The EPA adopted the model pursuant to a regulation requiring it to determine that a particular type of waste was non-hazardous before removing it from the agency’s list of regulated waste products. Id. The regulation did not specify how the agency was to make this determination and the agency adopted the VHS model in a “non-binding statement of policy.” Id. at 1320. The court ultimately determined that the EPA’s adoption of the VHS model could not be a statement of policy because it limited the agency’s discretion and was binding in practice. Id. at

1320–22. However, at no point did the EPA contend that the model was the result of an interpretation of the underlying regulation.

Similarly, the D.C. Circuit’s decision in Appalachian Power Co. v. EPA, 208 F.3d 1015

(D.C. Cir. 2000), rather than supporting Swift Pork’s position, illustrates only that a guidance

15 document may be legislative when it imposes obligations not encompassed in the underlying regulation. But here, the 1998 Memorandum simply explained an obligation that was always

“implicit in the language of the standard.” See Ex. B.

Finally, Swift Pork falsely asserts that “[p]re-1998 decisions held that 1910.141(c)(1)(i) was satisfied solely by the existence of the requisite number of toilets in the employer’s facility.”

Resp’t’s Mem. 17. Swift Pork grossly mischaracterizes these cases. In every case Swift Pork cites to support this contention, the only question at issue was whether the employer’s workplace contained the number of toilet facilities required by Table J-1. See Stagg Renz Ins. Agency, 1

BNA OSHC 3124 (No. 72-1907, 1973) (finding that an employer with eight employees was not required to have two toilet facilities, one for each sex); Moore Petroleum Serv., Inc., 12 BNA

OSHC 1845 (No. 85–1062, 1986) (finding a violation where there were “no toilet facilities whatever at [the] workplace”); Well Tech, Inc., Rig #30, 14 BNA OSHC 1363 (No. 88–1641,

1989) (finding that toilet facilities were “available” on site and vacating a citation alleging that none existed). None of the citations at issue in these cases alleged that unreasonable restrictions had been placed on employees’ use of the facilities. Therefore, the courts simply did not reach the question relevant here: whether the standard’s requirement that a certain number of toilet facilities “shall be provided” means employers must make the facilities available for employee use.

In sum, the 1998 Memorandum did not impose any substantive requirements independent of the Sanitation standard it interprets, demonstrating that it is an interpretive rule, not a legislative rule.

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D. The 1998 Memorandum Did Not Amend a Prior Legislative Rule.

This final factor also demonstrates that the 1998 Memorandum is an interpretive rule, not

a legislative rule, because the Memorandum did not amend a prior legislative rule; it simply

interpreted its text. “One would not normally say that a court ‘amends’ a statute when it

interprets its text. So too can an agency ‘interpret’ a regulation without ‘effectively amend[ing]’

the underlying source of law.” Mortg. Bankers Ass'n, 135 S. Ct. at 1208.

Swift Pork appears to argue that the 1998 Memorandum impermissibly amended the

standard by re-inserting a requirement that OSHA revoked by rulemaking in 1973. Resp’t’s

Mem. 20–21. However, the provision OSHA removed only addressed the location of toilet

facilities in relation to employee work areas.12 It required that toilet facilities be “readily

accessible to all employees,” noting that “facilities so located that employees must use more

than one floor-to-floor flight of stairs to or from them are not considered readily accessible” and recommended that “[a]s far as practicable, toilet facilities should be located within 200 feet of

all locations at which workers are regularly employed.” See 36 Fed. Reg. 10466, 10593 (April

27, 1971) (text of standard originally adopted). This provision was included in the Sanitation standard when OSHA adopted ANSI Z4.1 in 1971, and OSHA removed this provision in 1973 without explanation. See 38 Fed. Reg. 10930, 10931 (May 3, 1973).

The 1998 Memorandum was not an attempt by OSHA to informally re-promulgate the

“readily accessible” requirement revoked in 1973. The revoked provision was concerned with the physical location of toilet facilities in relation to employee work areas. In contrast, the 1998

12 The deleted provision read: “Toilet Facilities shall be provided so as to be readily accessible to all employees. Toilet facilities so located that employees must use more than one floor-to-floor flight of stairs to or from them are not considered as readily accessible. As far as is practicable, toilet facilities should be located within 200 feet of all locations at which workers are regularly employed.” See National Consensus Standards and Established Federal Standards, 36 Fed. Reg. 10466, 10593 (April 27, 1971) (former section 1910.141(c)(1)(ii)).

17

Memorandum addressed employer policies restricting employees’ ability to use toilet facilities when they need to. The 1998 Memorandum imposes no requirements on the physical location of toilet facilities, and does not purport to interpret any regulatory language concerning “access” to toilet facilities.13 Accordingly, the legislative history does not preclude the interpretation articulated in the 1998 Memorandum.14

In sum, the 1998 Memorandum was an interpretive rule, not a legislative rule, because it simply interpreted potentially ambiguous text in the Sanitation standard. It did not impose any requirements independent of the standard, nor did it amend the standard. Accordingly, the

Secretary properly issued the 1998 Memorandum without going through notice and comment rulemaking.

13 The 1973 Federal Register notice provided no explanation for the revocation. The most one could glean from the rulemaking is that OSHA did not feel it necessary to specify minimum distances between employees’ work stations and the required toilet facilities. There is simply no basis to assume that OSHA meant the revocation to limit the requirement in section 1910.141(c)(1)(i) to provide toilet facilities.

14 Chamber of Commerce of U.S. v. OSHA, 636 F.2d 464 (D.C. Cir. 1980), does not support Swift Pork’s argument that the 1998 Memorandum is a legislative rule because it conflicts with the legislative history of the Sanitation standard. See Resp’t’s Mem. 20. That case is plainly distinguishable. There, the D.C. Circuit found that an OSHA rule could not be interpretive because a prior decision of that court had already determined that the requirement at issue could not be derived from the text of the statute, its legislative history, or the purpose underlying its enactment. Id. at 468. It therefore imposed a new requirement that went beyond the underlying statute. In contrast here, neither OSHA nor any reviewing court has ever taken the position that the Sanitation standard precluded the interpretation advanced in the 1998 Memorandum and embodied in the citation at issue in this case. On the contrary, a number of courts have agreed with OSHA that the requirement to provide toilet facilities includes a requirement to make those facilities available to employees. See, e.g., Gravot v. Westport Pain Ctr., Inc., 2007 U.S. Dist. LEXIS 60333 at *5 n.2 (E.D. Mo. 2007) (stating that the requirement to provide toilet facilities “means that an employer may not ‘unreasonably restrict’ access to toilet facilities”); Prince v. Electrolux Home Prods., 2014 U.S. Dist. LEXIS 18704 at *15 (D. Minn. 2014) (finding that if an employee was denied access to toilet facilities then “toilet facilities were not provided, or made available, to her as required”).

18

III. Section 1910.141(c)(1)(i) is Not Void for Vagueness Because a Reasonable Employer Familiar With the Standard Would Understand That It Prohibits the Restrictions Swift Pork is Alleged to Have Implemented, and OSHA’s Public Statements About the Standard Resolve Any Possible Uncertainty.

The Sanitation standard easily survives Swift Pork’s vagueness challenge because a

reasonable employer acting in good faith could understand what the standard requires given that

the word “provide” has readily ascertainable meaning, and OSHA further clarified its meaning in

the 1998 Memorandum and other guidance documents. See Nat'l Oilseed Processors Ass'n v.

OSHA, 769 F.3d 1173, 1183 (D.C. Cir. 2014). Accordingly, Swift Pork’s vagueness challenge

lacks merit.

“[R]egulations will be found to satisfy due process so long as they are sufficiently

specific that a reasonably prudent person, familiar with the conditions the regulations are meant

to address and the objectives the regulations are meant to achieve, would have fair warning of

what the regulations require.” Freeman United Coal Mining Co. v. Fed. Mine Safety & Health

Review Comm’n, 108 F.3d 358, 362 (D.C. Cir. 1997). “If, by reviewing the regulations and other

public statements issued by the agency, a regulated party acting in good faith would be able to identify, with ‘ascertainable certainty,’ the standards with which the agency expects parties to conform, then the agency has fairly notified a petitioner of the agency's interpretation.” Nat'l

Oilseed Processors Ass'n, 769 F.3d at 1183 (quoting Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329

(D.C.Cir.1995)) (emphasis added). Therefore, to determine whether a standard is unconstitutionally vague, a reviewing court looks not only at the text of the standard but also at its stated purpose and agency interpretive rules explaining its meaning.15

15 Specifically, OSHA has issued six public statements explaining the meaning of the Sanitation standard. See supra n.11. 19

The plain meaning of the word “provide” – and the 1998 Memorandum reasonably interpreting its meaning in the context of the Sanitation standard – provided ample notice to employers that the standard prohibits employers from unreasonably denying employees permission to use toilet facilities when they need to do so. As discussed supra at page 10, the dictionary meaning of the term “provide” is to “make available.” Thus, even without the 1998

Memorandum, the Sanitation standard would survive Swift Pork’s vagueness challenge. To the extent any uncertainty remained, the 1998 Memorandum clarified that “[t]oilets that employees are not allowed to use for extended periods cannot be said to be ‘available’ to those employees,” and that employers “may not impose unreasonable restrictions on employee use of the facilities.”

See Ex. B. This explanation flows directly from the plain meaning of the term “provide” and is readily apparent to anyone familiar with the purpose of the standard: “to ensure that employers provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them.”

Id.

OSHA standards need not define the employer’s obligation with mathematical certainty, as Swift Pork suggests; rather, a standard’s explanation of what it requires may embody

“flexibility and reasonable breadth.” Freeman United Coal Mining Co., 108 F.3d at 362. As

OSHA explained in its April 23, 2003 Interpretation Letter, a more precise standard would inappropriately limit the flexibility necessary to account for the varying needs of both employers and employees. See Ex. H. OSHA noted that multiple factors affect an employee’s need to use toilet facilities, including “diet, stress, pregnancy, prostate health, other medical conditions, medication use, weather temperature . . . , and the amount and type of fluid consumed.” Id.

Further, some types of work “may require constant worker coverage/attention.” Id. A rule that

20

set more definitive timetables for toilet use “might not allow the flexibility needed to address all

types of work situations” or all types of workers. Id.

A reasonable employer “familiar with the conditions the [Sanitation standard is] meant to

address and the objectives the [standard is] meant to achieve, would have fair warning of what

the [standard] require[s].” See Freeman United Coal Mining Co., 108 F.3d at 362. OSHA made

clear in the 1998 Memorandum that employer policies restricting employees from using toilet

facilities “must be reasonable, and may not cause extended delays.” Ex. B. Although this explanation of what the standard requires allows employers flexibility to craft reasonable restrictions on employee toilet use, any reasonable employer would understand that the restrictions Swift Pork allegedly imposed would violate the standard. Employees at the

Beardstown plant claim that their supervisors regularly made them wait more than thirty minutes to use the toilet after they asked to do so; that supervisors penalized them from leaving the line more than once per day or six times per week, whether to use the toilet or for any other reason;

that some employees reduced their fluid intake or wore adult diapers for fear they would be

penalized for needing to leave the line to go to the toilet more frequently than Swift Pork’s

policy allowed; and that some employees soiled themselves on the line because they were made

to wait an excessive period of time after asking to use the toilet and were afraid they would be

penalized for leaving the line before they were relieved. See Ex. F.

Swift Pork has also failed to establish that the Sanitation standard is so vague as to

encourage arbitrary enforcement. “Central to the doctrine [of vagueness] is the requirement that

there be minimal guidelines to govern the discretion of those who enforce the statute or

regulation in question.” Pitt-Des Moines, Inc., 168 F.3d at 987 (citing Kolender, 461 U.S. at

357). The language of the standard plainly limits enforcement to those situations in which an

21 employer has imposed such unreasonable restrictions on toilet use that the employer has violated its duty to make the toilets available for employee use.16 In any case, individual CSHOs do not issue citations; citations are issued by Area Directors. See Ex. A (signed by then-Area Director

Tom Bielema).

Because a reasonably prudent employer familiar with the conditions the Sanitation standard is meant to address would know that it prohibits the restrictions Swift Pork is alleged to have imposed, and because individual compliance officers do not have unfettered discretion to issue citations under the standard, Swift Pork’s vagueness challenge must fail.

16 The Supreme Court’s decision in Grayned v. City of Rockford, 408 U.S. 104 (1972), on which Swift Pork relies in its brief, is inapposite. In that case, the Supreme Court held that an anti-noise ordinance prohibiting loud demonstrations outside schools during school hours was not unconstitutionally vague.

22

CONCLUSION

Swift Pork has failed to demonstrate that it is entitled to judgment as a matter of law;

therefore, the Secretary is entitled to a hearing on the merits of the citation. Swift Pork’s

arguments for summary judgment are narrowly framed as purely legal challenges. As

demonstrated in the preceding sections, Swift Pork’s legal challenges are baseless. For the

reasons stated above, therefore, the Secretary respectfully requests that this Court deny

17 Respondent’s Motion for Summary Judgement in its entirety.

Respectfully submitted,

NICHOLAS C. GEALE Acting Solicitor of Labor

CHRISTINE Z. HERI Regional Solicitor

/s/ Travis W. Gosselin TRAVIS W. GOSSELIN Attorney

P.O. ADDRESS: /s/ Rachel L. Graeber U.S. Department of Labor RACHEL L. GRAEBER Office of the Solicitor Attorney 230 S. Dearborn Street Eighth Floor Attorneys for EDWARD C. HUGLER, Chicago, Illinois 60604 Acting Secretary of Labor, United States Telephone: (312) 353-6991 Department of Labor, Complainant

17 Should this Court determine that the 1998 Memorandum is a legislative rule, while not finding that 29 C.F.R. § 1910.141(c)(1)(i) is void for vagueness, the Secretary would still be entitled to a hearing on the merits of the citation. 23

CERTIFICATE OF SERVICE

This is to certify that the foregoing SECRETARY’S RESPONSE TO RESPONDENT’S MOTION FOR SUMMARY JUDGMENT has been served on the below- named individuals this 1st day of March 2017, by sending said copy by electronic mail to:

Thomas E. Ullrich [email protected] Derek J. Brostek [email protected] Wharton Aldhizer & Weaver, PLC 100 South Mason Street P.O. Box 20028 Harrisonburg, VA 22801

Joey Hipolito, Esq. [email protected] UFCW International Union 1775 K Street NW Washington, D.C. 20006

Belinda Thielen, Assistant Director [email protected] Occupational Safety & Health Office UFCW International Union 1110 Wolff Street Racine, WI 53402

/s/ Travis W. Gosselin TRAVIS W. GOSSELIN Attorney

/s/ Rachel L. Graeber RACHEL L. GRAEBER Attorney

United States Department of Labor Attorneys for the Secretary

24

EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000498 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000500 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000501 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000502 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000503 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000504 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000505 EXHIBIT A

Inspection No. 1116370 OSHRC Docket No. 16-0510 OSHA 000506 UNITED STATES DEPARTMENT OF LABOR EXHIBIT B

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 Standard Interpretations - Table of Contents

• Standard Number: 1910.141(c)(1)(i)

April 6, 1998

MEMORANDUM FOR: REGIONAL ADMININSTRATORS STATE DESIGNEES

FROM: JOHN B. MILES, JR., Director Directorate of Compliance Programs

SUBJECT: Interpretation of 29 CFR 1910.141(c)(1)(i): Toilet Facilities

OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(l)(i), requires employers to provide their employees with toilet facilities: Except as otherwise indicated in this paragraph (c)(l)(i), toliet facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section .... [emphasis added]

This memorandum explains OSHA's interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities. OSHA believes this requirement is implicit in the language of the standard and has not previously seen a need to address it more explicitly. Recently, however, OSHA has received requests for clarification of this point and has decided to issue this memorandum to explain its position clearly.

Background

The sanitation standard is intended to ensure that employers provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. Individuals vary significantly in the frequency with which they need to urinate and defecate, with pregnant women, women with stress incontinence, and men with prostatic hypertrophy needing to urinate more frequently. Increased frequency of voiding may also be caused by various medications, by environmental factors such as cold, and by high fluid intake, which may be necessary for individuals working in a hot environment. Diet, medication use, and medical condition are among the factors that can affect the frequency of defecation.

Medical studies show the importance of regular urination, with women generally needing to void more frequently than men. Adverse health effects that may result from voluntary urinary retention include increased frequency of urinary tract infections (UTIs), which can lead to more serious infections and, in rare situations, renal damage (see, e.g., Nielsen, A. Waite, W., "Epidemiology of Infrequent Voiding and Associated Symptoms," Scand J Urol Nephrol Supplement 157). UTIs during pregnancy have been associated with low birthweight babies, who are at risk for additional health problems compared to normal weight infants (see, Naeye, R.L., "Causes of the Excess Rates of Perinatal Mortality and the Prematurity in Pregnancies Complicated by Maternity Urinary Tract Infections," New England J. Medicine 1979; 300(15); 819-823). Medical evidence also shows that health problems, including constipation, abdominal pain, diverticuli, and hemorrhoids, can result if individuals delay defecation (see National Institutes of Health (NJH) Publication No. 95-2754, July 1995).

OSHA's field sanitation standard for Agriculture, 29 CFR 1928.110, based its requirement that toilets for farmworkers be located no more than a quarter mile from the location where employees are working on similar findings. This is particularly significant because the field sanitation standard arose out of the only OSHA rulemaking to address explicitly the question of worker need for prompt access to toilet facilities.

The Sanitation Standard

The language and structure of the general industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly. The standard requires that toilet facilities be "provided" in every workplace. The most basic meaning of "provide" is "make available." See Webster's New World Dictionary, Third College Edition, 1988, defining "provide" as "to make available; to supply (someone with something);" Borton Inc. V. OSHRC, 734 F.2d 508, 510 (l0th Cir. 1984) (usual meaning of provide is "to furnish, supply, or make available"); Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1119 (10th Cir, 1978) (same); Secretary v. Baker Concrete Constr. Co., 17 OSH Cas. (BNA) 1236, 1239 (concurring opinion; collecting cases); Contractors Welding of Western New York, Inc., 15 OSH Cas. (BNA) 1249, 1250 (same).1 Toilets that employees are not allowed to use for extended periods cannot be said to be "available" to those employees. Similarly, a clear intent of the requirement in Table J-1 that adequate numbers of toilets be provided for the size of the workforce is to assure that employees will not have to wait in long lines to use those facilities. Timely access is the goal of the standard.

The quoted provision of the standard is followed immediately by a paragraph stating that the toilet provision does not apply to mobile work crews or to locations that are normally unattended, "provided the employees working at these locations have transportation immediately available to nearby toilet facilities which meet the other requirements" of the standard (29 CFR 1910.141(c)(1)(ii) (emphasis supplied). Thus employees who are members of mobile crews, or who work at normally unattended locations must be able to leave their work location "immediately" for a "nearby" toilet facility. This provision was obviously intended to provide these employees with protection equivalent to that the general provision provides to to employees at fixed worksites. Read together, the two provisions make clear that all employees must have prompt access to toilet facilities.

OSHA has also made this point clear in a number of letters it has issued since the standard was promulgated. For example, in March 1976, OSHA explained to Aeroil Products Company that it would not necessarily violate the standard by having a small single-story building with no toilet facilities separated by 90 feet of pavement from a building that had the required facilities, so long as the employees in the smaller building had "unobstructed free access to the toilet facilities." Later that year, it explained again, in response to a question about toilet facilities at a U-Haul site, "reasonableness in evaluating the availability of sanitary facilities will be the rule." Again in 1983, OSHA responded to a request for a clarification of the standard by stating, "([i]f an employer provides the required toilet facilities ... and provides unobstructed free access to them, it appears the intent of the standard would be met." In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays. For example, a number of employers have instituted signal or relief worker systems for employees working on assembly lines or in other jobs where any employee's absence, even for the brief time it takes to go to the bathroom, would be disruptive. Under these systems, an employee who needs to use the bathroom gives some sort of a signal so that another employee may provide relief while the first employee is away from the work station. As long as there are sufficient relief workers to assure that employees need not wait an unreasonably long time to use the bathroom, OSHA believes that these systems comply with the standard.

Citation P olicy

Employee complaints of restrictions on toilet facility use should be evaluated on a case-by-case basis to determine whether the restrictions are reasonable. Careful consideration must be given to the nature of the restriction, including the length of time that employees are required to delay bathroom use, and the employer's explanation for the restriction. In addition, the investigation should examine whether restrictions are general policy or arise only in particular circumstances or with particular supervisors, whether the employer policy recognizes individual medical needs, whether employees have reported adverse health effects, and the frequency with which employees are denied permission to use the toilet facilities. Knowledge of these factors is important not only to determine whether a citation will be issued, but also to decide how any violation will be characterized.

It is important that a uniform approach be taken by all OSHA offices with respect to the interpretation of OSHA's general industry sanitation standard, specifically with regard to the issue of employee use of toilet facilities. Proposed citations for violations of this standard must be forwarded to the Directorate of Compliance Programs (DCP) for review and approval. DCP will consult with the Office of Occupational Medicine. DCP will approve citations if the employer's restrictions are clearly unreasonable, or otherwise not in compliance with the standard. (NOTE: See 08/11/00 Memorandum to RAs attached below.)---Added this note

State Plan States are not required to issue their own interpretation in response to this policy, however they must ensure that State standards and their interpretations remain "at least as effective" as the Federal standard. Regional Administrators shall offer assistance to the States on this issue, including consultation with the Directorate of Compliance programs, at the State's request.

If you have any questions, contact Helen Rogers in the Office of General Industry Compliance at (202) 219-8031/41 x106.

Footnote(1) This decision was later vacated pursuant to a settlement, but the Commission has continued to cite it. See Secretary v. Baker Concrete Constr. Co., supra. The issue in Contractors Welding and the other cited cases has been whether the meaning of the term "provide," in various standards requiring employers to provide certain equipment or other materials, is not limited to making something available, but may also mean that the employer must pay for what it provides and must require it to be used. Those broader meanings are not relevant to this issue, however, where the sanitary facilities the employer is required to provide are a physical part of its workplace, and the question is not whether employees must be required to use those facilities, but whether they will be allowed to do so. (Back to Text)

August 11, 2000---Added this memo

MEMORANDUM FOR: REGIONAL ADMININSTRATORS

FROM: RICHARD E. FAIRFAX, Director Directorate of Compliance Programs

SUBJECT: Interpretation of 29 CFR 1910.141(c)(1)(i): Toilet Facilities

On April 6, 1998 we issued an interpretation of 1910.141(c)(1)(i), which requires employers to make toilet facilities available so that employees can use them when they need to do so. A copy of that memorandum is attached.

The 1998 memorandum states that proposed citations for violations of this standard are to be forwarded to the Directorate of Compliance Programs (DCP) for review and approval. Shortly after the interpretation was issued, it was decided that the review and approval was to be at the Regional Office level, but that copies of any citations issued based on the April 6, 1998 interpretation should still be sent to DCP.

This topic continues to generate interest from the public. Early this year we had a Freedom of Information Act (FOIA) request for copies of citations issued. Therefore, please continue to send copies of any citations issued pursuant to the 1998 interpretation to the National Office. If you have any questions, please contact Helen Rogers at (202) 693-1850. The copies should be sent to the following address:

Richard E. Fairfax, Director Directorate of Compliance Programs U.S. Department of Labor - OSHA 200 Constitution Avenue, NW Room N-3603 Washington, DC 20210

 Standard Interpretations - Table of Contents

UNITED STATES DEPARTMENT OF LABOR

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3 of 3 EXHIBIT C USAS Z4.1-1968 Revt.ion of Z4.1-1956

Requirements for Sanitation in Places of Employment

American National Standard TkO, .".d.,. i, .n ••t ...r. tn,. 4000 ,.0<0 •••• ' .itl>., • USA St,nd.,. or I. on """;<0" 51,od"d. It '."mo.n " .. ,ri,," N,'io,,' St •••"d in O,t.b" 1969 ",no ••no I,,'i'"'. '!>'n,od ito n.... t ...... ,,,.n N.,",,,, Stood" •• In.hI",., 1.,_ .I.NSI, 1430 I,•• dwav, Now Y.,l<, N. y, 1001' USAS Z4.1·1968 Revision of ZA . I - J9~

USA Standard Requirements for Sanitation in Places of Employment

Sponsor American Conference of Governmental Industrial Hygienists

Approved February 26, 1968 United States of America Standards Institute

2 of 13 USA Standard

A USA Standard Implies a consensufl of those substantially concerned with !ttl lIeops and provisions. A USA Standard Is Intended as 8 guide to aid the manufacturer. the consumer, and the genera) public. The existence of a USA Standard does not In any respect preclude anyone, whether be has approved the standard or not, from manufacturing. marketing. purchasing, or using products, processes, or procedures not conforming to the standard. USA Standards are subject to periodic revIew and users are cautioned to obtain the latest editions. Producers of goods made In conformity with a USA Standard are encouraged to state on their own responslh1l1ty tn ad­ vertiSIng, promotion material, or on tags or labels. that the goods are produced In conformity with particular USA Standards.

Published by

United Slales or America Siandards Institule 10 East 4mh Street. New York . N. y , 10016

Copyright 1968 by United States of America Standards In.titute Uniyer~al Decimal Clauification 628.6

No pMliun or lhis publinllion m i l' be Qunleti II , repmr1ur.eo1ln .ny form without the writlen permi",i[)n "I the United SI8 Ut,.· of .... meric:~ Sllna.ras inS!i!lIte

H5C672/275

3 of 13 Foreword

fThis "'oreword is nut .. p.Ht of USA Standard Requiremenlll lor Sanitation in Plac .. " of E mployment., Z".1 -1968.)

The prov isions in this standard arc the resul t of extended and careful (.'o nsidcralion of avail· able knowledge and experience on the subject. of ind ustrial sanitation. and are intended to I)rcsenl mini mu m requirements recommended for use by cmployt!rs. building owners, and others con­ eer"ned with the design and construction of industrial and commercial buildings. These provisions arC also suitable for adoption by governmental adm inistrative authorities.

This standard supersedes the 1955 revision of the American Standard Safety Code for Indus­ trial Sanitation in Manufacturing Establishments. approved by the American Standards Associa· tion in 1935. (The ASA was reconstituted as the US A Standards Institute in August 1966, and Am erican Standards current at that time are now known as USA Standards.) Suggestions for improvement gained in the use of this standard will be welcome. They should be sent to the United States of America Standards Institute, 10 East 40th Street, New York, N. Y. 1001 6. The USA Standards Committee on Safety Code for Industrial Sanitation, Z4, had the fol· lowing personnel at the time it developed and approved this standard:

Carl R Jensen, Chairman Angela P. Garbarino, Secl'f:tury

Organization I«pr,.~nll!d Nama of Hep ..... srnlaliuc Air·Conditionini & IU; lrlgeration Inatitute .. Loui. P . Benua F~e rick J . Reed (A ft! American Conference of Governm",ntal Industrial H ygienists Carl R. J ensen E. Lynn Schall (Altl Amer!can Feder.tion of Labor .nd Congress of Industri.1 Organiutionl Lloyd D. Utter Americln Indunrill Hygiene Auodation ...... William T. Ingram Paul Lange (Altl American Inauranee Auoei ltion J. J . Barranger James T. Newman (Alt) America n MuLU.l Insurance Allianee Ange!a P. Garbarino F rederick H. Dees: (Alt) American Patrolaum InltiLUte A llan E. Dooley American P ublic Health Association. Robert Taggart E lgin D. Salles (Alt) American Society of Safety Engineers Walter F. Scholtz A$lIoci.ted Genera! Contractors of Am",rica Fred U vingaton Arthur L . Schmuhl (Alt) Auociation of American Railroad ., M",dical and Surgical Section .. T . L. HendrilJ:. C. E. DeGeer (Alt) Conference of S~.te Provincial H..,.lt h Authotititll of N . A. Franklin M . F oote J oaeph J . Stapor IAlt) Electronic In.dultriel A ..ocilltion . .. J ames T. Sullivan Donald A. Patrician (Alt) Individual Member ... Fernando C.lltro Indu. trial MediCiI Au.odation N . A . Thurangeau Se.... rd Miller (A lt) Inltitu/.e 0 1 SaniU,tion Managellumt .. Robert S. T.igart J . Lloyd B.rron (Alt.) Harry Pool (All} Internatio n. 1 ABllociation of Gover nmental Lllbor Offici,ls . Richard J . Sullivan John H. Taylor ( Alt} Kohler Company . Elmer F. Gielow E . A . Povalilki N.tion.1 Anodation of Sanitarians ...... Georae W . Schucker Roland Evea (Alt) National Safety Counci\. JWprauntation Vacant Julien B. OHshifski (AIt) New York State Departmen.t of Labor Jack B.Hff Slimuel Moskowitz (Altl

4 of 13 Telephone Group A. J . ZlIhrlld nik K N. S~ il er (AIt) u. s. Depllrlmen~ of the Army John Redmond Lee C. H erwig ( All ) G . I.. F'eBleU (AIt) U. s. o.:-pllrtment of Hea/th. Education a nd Welfurc. U S. Puhlic lI~a !t h S('n ' K·e Arthur II Neill J06l:\11I P. Schock Alt) John M . Ulankenhorn (AlII U. S. Oolpa rtment of Labor Floyd A . Van Attll G. WII!Ii-.H lJaubenspeck (All) U. S. D.epartment of the Na.vy S H . BBrlx", C T. J orda.n (A/I)

Subcomm ittee Z4-J. which developed this .sta nd anJ. had the ful lowing P€ ,·:'onncl: All an E. Dooley, Chai,.man

H. K . AbrllmB A. H. Neil! w. T. Ingram fl. . J. Sullivan

5 of 13 Contents

SEL'TION PAGE

!. Scope and Purpose ...... 7 1.1 Scope .. 7 1.2 Purpose .... 7 2. Definitions . 7 3. General Requirements ...... 7 3.1 Housekeeping ... _ ...... ,.. .. 7 3. 2 Expectorating .... "' , . 7 3.3 Waste Disposal ...... 8 3.4 Rodent. Insect, and Vermin Control 8 3.5 Inspection 8 4. Light and Ventilation __ ...... 8 4.1 Lighting. 8 4. 2 Ventil ation ...... 8 5. Water Supply .. 8 5.1 Potable Water . 8 5.2 Non-potable Water ...... 9 6. Toilet Facilities "' .. . 9 6.1 Gener al .... _...... 9 6.2 Construction o( Toilet. Rooms ...... 9 6. 3 Constr uction and Inl; tallation of Toilet Facilities.. .. 10 6.4 Chemical Closets and Privies .. 10 7. Was hing Facilities,.. 10 7.1 General . 10 8. Change Rooms_ ...... 10 8.1 General .. 10 9. Retiring Rooms (or Women ...... II 9.1 General . 10. Lunch Rooms ...... "12 10.1 General ...... 12 11. Food Handling ...... 12 11 .1 General ...... ~ ...... ~ ...... 12

6 of 13 USA Standard Requirements for Sanitation in Places of Employment

I. Scope and Purpose Should. The word "should" is used to indio cate provisions which are not mandat.ory but 1.1 Scope. This standard applies to an perma­ which arc here recommended as good practice. nent places of employment, except where do­ Toilet Facilities (Closets). Fixtures main· mestic, mining, or agricultural work only is tained within toilet rooms for the purpose of performt!d. Measures for the cont.rol of tox ic d{'fecation. mater ia ls are considered to be outs ide th~ Toilet Room. A room maint.ai ned within or S(;ope of this standard. on the premises of any place of employment., containing toilet facilities fOf use of employees. 1.2 Purpose. The purpose of this standnrd i.e; Urinal. A fixture connected with a sewer, to prescribe minimum sanitary requirements maintained within a toilet room for the sole for the protection of the health of employees purpose of urination. in establishments covered by this standard. Wash Room. Any space or room in any place of employment used solely for the PUI'pose of 2. Definitions mai.ntaining body cleanliness. Water Closet. A toilet fa cility which is can· nected to a sewer and flushed with water . Appro\·ed. Approved by the authority hav· ing jurisd idion. Chemical Closet. A toilet facility where the waste disposlI ) is not washed in to t he sewer but 3. General Requirements is collected in a container charged with a chern· ical solution for the purpose of disinfecting 3.1 Housekeeping and deodorizing the contents. 3.1.1 All places of employment, passage­ Lavatol1'. A basin or other vessel for wash· ways, storerooms, and service tooms shall be ing. kept clean and orderly and in a sanitary con­ Number or Employees. Unless otherwise dition. specified. the maximum number at work at 3.1.2 The floor of every workroom shall be anyone lime. maintained in a clean and, so rar as possible, Personal Service Rooms. Rooms set apart a dry condition. Where wet processes are used, as first·aid rooms, rest rooms, emergency drainage shall be maintained. and false fl oors. rooms. dressing rooms. toilet rooms. wash platforms, mats, or other dry standing places rooms. lunch rooms, and rooms for such should be provided where practicable. purposes. 3.1.3 Cleaning and sweeping shall be done Place or Employment. E,'cry place. within in such a manner as to minimi7.e the contami· the scope of this standard, where any person nation of the air with dust and, so far as is is dircctly or indirectly employed. practicable, shall be done outside of working Potable Water. Watcr which does not can· hours. tain objectionable pollution. contamination, 3.1.4 To facilitate cleaning, every floor. minerals, or infection and is considered satis· working place. and passageway shall be kept factory (or domestic consumption. free from protruding nails, splinters. holes, Sanitary Condition. Within the meaning of or loose boards. the code, Ihat physical condition of working 3.2 Expectorating quarters whi ch will tend to prevent the inci· 3.2.1 Expectorating upon the walls, fl oors, dence and sprelld of disease. work places, or stairs of any establishment Shall. Where "shall" is used for a provision shall not be permitted. specified hereinafter, that provision is in· 3.2.2 Cuspidors are considered undesirable, tended to be mandatory. but, if used, they shaH be of such construe·

7

7 of 13 USA STANDARD REQU]RJo:MENTS FOR

tion t hat thcy a,'c deanabi('. They shall be rate in cubit: fect per mi nute pcr person which cleaned at leas t daily when in use. is not les.... thlill t he following: 3.3 Waste Disposal Ai,· Spt1.ce in Room Cubic Feet of Outside 3.3.1 Any n:!c~ p ta d e used for putrescible in Cubic Feet Air per Mi nute solid or liquid wast!! or refuse s hall be so con· __pC I · P~ __ per Person structed that it docs lI ot leak and may be Less than 200 20 conven iently and thoroughly cleaned, and it 20 1·f)OO 15 shall be maintained in a sanitary condition. 50 1· 1000 10 Sueh a receptacle shall be equipped with a Ovcr 1000 5 tight·fitting cover . 3.3.2 All s weepings. solid or liquid \vastes, 4.2.2 Toild rooms should be provided with refuse, and g;arbage shall be removed in such a minimum ventilation rate of' 35 cubic ff~et a manner as to avoid creating a nuisance or of ail" per water closet or urinal installed menace to health and as often as necessary to therein . maintain the place of employment in a sani· tary condition. 5. Water Supply 3.4 Rodent, Insect, and Vermin Control. Every enclosed work placr and personal serviee room 5.1 Potable Water shall be constructed, equipped, and main· 5.1.1 An adequate: supply of potable water tained, so far as reasonably practicable, in shall be provid.ed fOI" drinking. ablutionsl'y, s uch a manner as to prevent the ent rance or and culinary PII I'poses in all places of employ· harborage of rodents. insects. and vermin of ment.. Drinking waler s hould be made avail· any kind, able within 200 feet or any location at which 3.5 Inspection. Ins p(."Ctions s hould be made as employees arc regulnrly engaged in work. Un· ofle n as necessary to ins ure compliance with der certain conditions where the work area is all sanitary requirements of this standard. in· large and the number or employees relatively s pections s hould also be made of mechanical small, these requirements may be met by the equipment utilized to promote sanitation as use of approved portable containers. often as is necessary to insure il<; proper func­ 5.1.2 Sanitary drinking fountains shall be tioning. Records should be made of these of a type and construction approved by the inspections .. authorities having jurisdiction. New installa· tions shall be constructed in accordance with the rcquit'cments of authorities having juris· diction , 01' if there loire no such requirements, 4. Light and Ventilation in accordance with the USA Standard Specifi­ cation for Drinking Fountains. Z4.2·1942, or 4.1 Lighting. Lighting should be in accordance the lawst rev ision thereof approved by the with the recommendations contained in USA United States of America Standards Institute. Standard for Industrial Lighting, All.l·1966, 5.1.3 In all instances where water is cooled or the latest revision thereof approved by the by icc. the construction of the container shall United S~at.cs of Arnel'ica Standard<; Institute. be s uch thHt the icc does not oome in direct contact wit.h the Wale l', 4.2 Vent.ilation. The amount of ventilat.ion pro­ 5. 1.4 Open containers s uch as barrels, pails. vided shall be in accOl'dance with the require· or tanks for drinking water from which the ment,> of the authorities having jurisdict ion. water mus t be dipped or poured. whether or In the event that. there arc no legally specified ventilation requ irements, t.he rollowing scc­ t.ion ~ should be used as a guide in establishing IFor information concerning natura! ventilation. 5t8n· minimum ventilation requirements. dllrd references $u.::h tiS t he Iieatinil. V .. "tilating. and 4.2.1 Outside air should be provided by A ir Conditioning Ould.. of the American Society of Heat· either mechanical or naturaJi means to all ing and Ventilating EnKineers II.nd the Manual of Recom. mended Praclice on Industrial Ventilation of the Ameri· rooms occupied by workers. Where mechanical can Conferoncc of Governmental Industrial Hygienists ventilation is used. it shall be provided at a are suggested.

8

8 of 13 SAN I TATION IN PLACES OF EM PLOYMENT 1..4 I not they arc fittct! with a cover. shice eups (to be used estimatillg thp minim Ulll nUmb('I' of toi ld but onee) arc supplied, bo th u sanita ry CO Il ­ faeilitil's requil't'd. tainer fOl' the unus('d t: Ups and a rccephu:h: Minim lUll for' disposing of til(> used eups shall lx' pro· vided. Numlw r of Pm:il ilics l to!l 5.2 Non-potable Water I II 1.0 24 ..... 2 5.2.1 OutieL.. for non·potable watel", s uch 25 L-O ·HJ 3 as wawr for industdal 01" fire,fighti ng pur· rIO lO 7.1 4 poses only. shal! be poswd 10 indicate clcl.lrly 7f, to JOO 5 that the water is unsafe and is not to be used Over 10 0 I for each for drinking, washing. or cooking purposes. additional 30 persons 5.2,2 There shall be no cross'connct'tion. open or potential. bdween a system furnishing Where 10 or more are employed. urinals potable water and a system furnishing non, may he provided. One water closet less than potable water. the number specified in the foregoing may be 5.2.3 Constmct ion !> ha ll be such as to pre­ pl'Ov idcd fOl' each urinal. excep t- that the num· vent backflow of contaminated water into a bel' of water dosel.. in such (.'&~es may not be potable wa\.er sysLem, reduced to less than two·thirds of the numoor 5.2.4 Non'potable waLel' shall not be used specified in the foregoing. Two fee t of trough for bathing or for washing any portion of th~ urinal shall be considered as l'Quivalent to one person, clothing, dishes. or premises. except as individual urinal. specifically permit.ted by the ·health authori· 6.1.4 An adequate supply of toilet paper ties having jurisd k tion. with holdf~r shall be provided for every water closd. 6.l.S Covered n!ceptacles shall be kept in all toilet rooms ust:d by women, 6.1.6 Adequate washing facilities shall be 6. Toilet Facilities prgvidcd in el' ~ ry to il ~t room or be adjacent thereto. 6.1 General 6. I.I Every place of employment shall be 6.2 Construction of Toilet &:.oms provided with adequate toilet facilities which 6.2.1 Each to ilet facility (closet) shall occupy are separate for each sex. The sewage disposal a separate compartment. which should be method shall comply with requirements of the equipped wi th a door. latch, and clothes health or other a uthorities having jurisdiction. hanger. 6.1.2 Toilet facilities sha ll be provided so as 6.2.2 The wa lls of compartments or parti, to be readily accessible to a ll employees. 'lbilet tions between fi xtures may be less than lhe facilities so located that employees must usc height of room walls. but the top s hall not be more than one fl oor··to·floor flight of stairs to less than six feel fmm the floor and the bottom or from them are not considered as l'I:adily not more than one foot from the floor. accessible. As far as is practicable, toilet facili· 6.2.3 The door to every toilet room shall be ties should be located within 200 feet of all fitted with an effective self·closing device, and locations at which workers are regularly the entrance to the toilet room shall be so employed. screened that the interior of the toilet room is 6.1.3 Water dosets shall be provided Cor not visible from the workroom. each sex according to the following table. The 6.2.4 In all toilet r ooms hereinafter In , number to be provided for each sex s ha ll in stalled, the floors and side walls, to a height every case be based on the maximum number of at least s ix inches, including t he angle of persons of t.hat sex employed at anyone formed by the fl oo.· /:Ind side walls, s hall be of time at work on the premises for which the watertight construction.

9

9 of 13 Z4,j USA STANDARD REQUIHEMENTS FOR

6.2.5 The floors, walls, ceilings. partitions. the latest n,yision then;of appr'oved by the and doors of all toilet rooms shall be of a fin­ United States of America Standards Institut.e. ish that can be easily cleaned. In new installa­ 6.4.2 Where mon; than two closets for eaeh tions, cove bases shall be provided to facilitate sex art' nf'edcd. a watt'!' carriage disposal sys­ cleaning. tem should be installed in lieu of chemical 6.2.6 Toilet rooms, except those in work closets or privies. places accessible to men only, shall be com­ pletely enclosed with solid mat.erial that is nontransparent from the outside. In new in­ stallations, the minimum floor space allotted 7. Washing Facilities for water closets, lavatories, and urinals should be as follows: 7.1 General Minimum 7.1.1 Adequate facilities for maintaining Room personal cleanliness shall be provided in every Minimum Minimum Space place of employment. These shaH be convenient Width Depth per Unit for the employees for whom they arc provided and shall be maintained in a sanitary wndition. Water 7_1.2 At least one lavatory with adequate closets 32 in. 42 in. 16sqft hot and cold water, pI'eferably from a combi­ Lavatories 24 in. 42 in. 12 sq ft nation supply fixture, shall be provided for Urinals 24 in. 42 in. 12 sq ft every 10 employees (men or women) or portion thereof, up to 100 persons; and over 100 per­ 6.3 Construction and Installation of Toilet sons one lavatory for each additional 15 per­ Facilities sons or portion thereof. Twenty-four inches of 6.3.1 It is suggested that in the absence of sink with individual faucet shall be considered state or local building codes, the requirements as equal to one lavatory. In all instances, a of the USA Standard Plumbing Code. A40.8- suitable cleansing agent shall be provided at 1955, or the latest revision thereof approved each wash place. by the United States of America Standards 7.1.3 Where employees arc exposed to skin Institute, be followed in the construction and contamination with poisonous, infectious, or installation of toilet facilities. irritating material, the rules and regulations 6.3.2 Every water closet bowl shall be set of the authority having jurisdiction concern­ entirely free and open from all enclosing struc­ ing lavatory and showers shall apply. tures and shall be so installed that the space 7,1.4 Individual hand towels, or sections around the fixture can be easily cleaned. This thereof, of cloth or paper, shall be provided provision does not prohibit the use of wall­ and proper receptacles or other sanitary hung type water closets. means maintained for the disposal of used 6.3.3 Every water closet shall have a hinged towels. Other apparatus for drying the hands open-front seat made of substantial material may be substituted for towels upon approval having a nonabsorbent finish. Integral water­ by the authorities having jurisdiction·, The closet seats may be used where specifically provision of a towel for general or common permitted by the health authorities having use shall be prohibited. jurisdiction_ 6.4 Chemical Closets and Privies 6.4.1 When chemical closets or privies arc permitted, they shall be of a type approved 8. Change Rooms by the health authorities having jurisdiction and shall be maintained in a sanitary condi­ 8,1 General tion. In the absence of specific regulations. 8_1.1 Separate change or dressing rooms construction and maintenance shall be in equipped with individual clothes facilities shall accordance with USA Standard Spec;if1ca­ be provided for each sex wherever it is the Hans for the Sanitary Privy, Z4.3-1935 (Sup­ practice to change from street clothes or where· plement 108 to Public Health Reports), or ever it is necessary to change because the work

10

10 of 13 SANITAT ION IN PLACES OF EMPLOYMENT " .1

performed involves exposure to excessive dirt , one Lime. S uch s pace shall be phys ically sep· heat, fumes, vapo", or moisture. In the event arate from any location where there is ex· that change rooms al"C not provided, facilitit:.s posure to toxic materials.2 shall be furn ished for hanging outer garmenL~ . 10.1.2 An adequate number of covered re· 8.1.2 Where employees ' work clothes are ceptacles constructed of a smooth, corros ion ex posed to contamination with poisonous, in­ resistant, easily cleanable, or disposable rn a· fectious , or irritating material, facilities should terial, shall. be provided by the employer and be provided in change rooms so that street and used by the employees for the disposal of all work clothes will not be storcd in contact with waste food . Such receptacles shall be emptied each other. not less than once daily and shall be main· 8. 1.3 Where t he process in which the wo rker tained in a clean and sanitary manner. is engaged is such that his working clothes be· 10.1.3 No food shall be stored or eaten come wet or havc to be washed between shifts. were t.here are present any toxic materials provision shall be made to ins ure that such or substances that may be injurious to health.2 clothing is dry befon, re·use. 10.1.4 No food shall be stored or eaten in any toilet room. 10.1.5 In every establishment where there is exposure to injurious dusts or other toxic 9. Retiring Rooms for Women ma ter ials, a separate lunch room shall be ma intained unless it is convenient for the em­ 9.1 General ployees to lunch away from the premises. The 9.1.1 Where 10 or more women are em­ following numbe,· of square feet per person, ployed at anyone time, at least one retiring based on the maximum number of persons room shall be provided, with the understand· using the room at one time, shall be required. ing that it is to be used only for rest and No. of Persons Square Feet emergencies and not for smoking or recrea· tion purposes. 25 and less 13 9.1.2 Where less than 10 women ar e em· 26·74 12 ployed and a rest room is not furnished. some 75·]49 II equivalent space shall be provided which can 1f)O and Ovel' 10 be pro perly screened for pr ivacy and m ~de suitable for the use of women employees. 9.1.3 At least one couch or bed s hall be PI'O' vided in every place where more than 10 11. Food Handling 'women are employed. Th~' number of such beds 01' couches required shall be as follows: 11.1 General 11.1.1 All employc£! food service facilities 10 to 100 1 bed and operations shall meet t he applicable laws, 100 to 250 2 bt.' ds ordinances, and rcgulations of the jurisdiction 1 additional bed for each additiona l 250 in which they arc located. In t.he abse nce women empJo}'t'Cs. thereof. the requi rements of "Food Service A minimum of 60 square feet of fl oor S anit.rl tion Oniinancc and Code," Part V. Food space PCI' bed 01' couch ;; hall be prO\'ided. ServiceSanilaiionM(Jnuo/, U.S. Public Health Service Publication No. 934 (19G5) or the latest revision thereof, shall be followed.

10. Lunch Rooms

~ Hom~ pn'plue.:1 lunches cn ntaining foods ~uch as 10.1 General m Il k or milk pmdudll. l:gg&, meat, poultry , fish. or 10.1.1 Tn all places of employment where combinationI' thereof. Ire a potential source of food· employees are permitted to lunch on the premi · burne illness ... hen stored at room temperature. Accord· St's. an adequate space s uitable for (-hat pur· ins;:ly. considerlltion s hould be given tu provid ing re­ fri geration facilities capahle of main taining a tempera· pose s ha ll be prodded fo r the maximum num· ture of 45 degrees" F or It'S, (or the storage of lunches bel' of employees who may usc such space at CtOn tain ing s u" h foods pending consumption.

II

11 of 13 Z4. 1

11.1.2 In all places of employ ment where in which they are located. In the absence all or part of the food service is provided by thereof. the requirements of Vending of Foods vending machines, the food dispensed shall and Beverages, A Sanitation Ordinance and be prepared, a nd the machine operated in Code, U.S. Public Health Service Publication accOI'dance with the applicable laws, ordi­ No. 546 (19651 or the latest revision thereof, nances, and regulations of the jurisdiction shall be followed .

12

12 of 13 American National Standards

The standard in this hooklet is one of nearly 4,000 standards approved 10 dale by the American National Standards Instit ute, forme rly' the USA Standards In" stilule.

The Standards Institute provides the mochinery for creallng voluntary stan­ dards. I. stuves 10 eliminate duplication of slQndords activities and to weld con· fl ic tl ng standards into single, notionally accepted sta ndards und e r Ihe designa­ tion "American Notional Standards." Each standard represents general agreement a mong maker. setler. and user groups as to Ihe besl current practice w ith regard 10 some specific problem. Thus Ihe completed sta ndards cut OC(055 Ihe whole fab ric of production, distribution, ond consumption of goods a nd services. American Na'ional Slofldords, by reo so n of !nslitule prcxed ures, reflect a nOliono l consensus of manufadurers, consumers, and scienlific, technical, and profeSSional organilotions, and governmental agen· cies. The completed standards o re used w idely by industry and c~mmerce and ofte l"\ by municipal, Slate, and federal governments.

The Standards Instilute, under whose ouspicel thil work is being done, is the United States clearinghouse and coordinating bod y for stondards activity on the nalionol level. II is a federation of trade a ssoci ations, technical scxieties, profes­ sionol groups, and consumer organizations. Some 1,000 componies are affiliated with the In stitute as company members. The American National Standards Institute is tho United Stales member of the Inte rnational Organization for Standordi:ratian (ISO), the Inte rnational Electro­ technical Commiuion (IEC), and the Pan America n Standards Commission (CO PANT ). Through these channels American industry makes ils position felt on the International level. American Notional Standards Clfe on file in the libraries of the na lio nal standards bodies of more than 50 countries.

For a fr~e tist of all American National Standard s, write:

Amerit.n National Standards Institute, Inc 1430 Broadway New York, N. Y. 10018

13 of 13 EXHIBIT D

1 of 5 2 of 5 3 of 5 4 of 5 5 of 5 EXHIBIT E

OSHA 000527 EXHIBIT E

OSHA 000528 EXHIBIT E

OSHA 000529 EXHIBIT E

OSHA 000530 EXHIBIT E

OSHA 000531 EXHIBIT E

OSHA 000532 EXHIBIT E

OSHA 000533 EXHIBIT E

OSHA 000534 EXHIBIT F

OSHA 000648 EXHIBIT F

OSHA 000649 EXHIBIT F

OSHA 000650 EXHIBIT F

OSHA 000651 EXHIBIT F

OSHA 000652 EXHIBIT F

OSHA 000653 EXHIBIT F

OSHA 000654 EXHIBIT F

OSHA 000655 EXHIBIT F

OSHA 000656 EXHIBIT F

OSHA 000657 EXHIBIT F

OSHA 000658 EXHIBIT F

OSHA 000659 EXHIBIT F

OSHA 000660 EXHIBIT F

OSHA 000661 EXHIBIT F

OSHA 000662 EXHIBIT F

OSHA 000663 EXHIBIT F

OSHA 000664 EXHIBIT F

OSHA 000665 EXHIBIT F

OSHA 000666 EXHIBIT F

OSHA 000667 UNITED STATES DEPARTMENT OF LABOR EXHIBIT G

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 Standard Interpretations - Table of Contents

• Standard Number: 1910.141(c)(1)(i)

March 11, 1976

Mr. A. Quayle Aeroil Products Company, Inc. 69 Wesley Street South Hackensack, New Jersey 07606

Dear Mr. Quayle:

This is in response to your letter of February 20, 1976, regarding the location of adequate toilet facilities. In addition, it confirms a telephone conversation with a member of my staff.

The description of a smaller, single story, building with no toilet facilities separated by 90 feet of pavement from a single story main building that has the required toilet facilities for all employees appears to meet the requirements of 29 CFR 1910.141(c)(1)(i) (copy enclosed). This opinion is based on both buildings being on the same premises with unobstructed free access to the toilet facilities.

Thank you for your concern and continuing interest in occupational safety and health. If I can be of any further assistance, please feel free to contact me.

Sincerely,

John K. Barto, Chief Division of Occupational Safety Programming

 Standard Interpretations - Table of Contents

UNITED STATES DEPARTMENT OF LABOR

Occupational Safety and Health Administration 200 Constitution Ave., NW, Washington, DC 20210  800-321-6742 (OSHA) TTY www.OSHA.gov

FED ERAL GOVERNM EN T OCCUPATIONAL SAFETY AND HEA LTH ABOUT THE SITE

White House Frequently Asked Questions Freedom of Information Act Affordable Care Act A - Z Index Privacy & Security Statement Disaster Recovery Assistance Freedom of Information Act Disclaimers USA.gov Read the OSHA Newsletter Important Web Site Notices Disability.gov Subscribe to the OSHA Newsletter Plug-ins Used by DOL Plain Writing Act OSHA Publications RSS Feeds from DOL Recovery Act Office of Inspector General Accessibility Statement No Fear Act U.S. Office of Special Counsel UNITED STATES DEPARTMENT OF LABOR EXHIBIT H

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 Standard Interpretations - Table of Contents

• Standard Number: 1910.141(c)

July 5, 1983

Ms. Jeanne E. Fisher 501 West University Parkway Baltimore, Maryland 21210

Dear Ms. Fisher:

This is in response to your letter of May 11, 1983, to Secretary of Labor, Raymond J. Donovan, requesting a clarification of 29 CFR 1910.141(c). Please accept my apology for the delay in responding.

There are no specific distance or location requirements for toilet facilities in 29 CFR 1910.141(c). An employer is, however, expected to use reasonable judgment in evaluating the proximity of sanitary facilities to employees. If an employer provides the required toilet facilities for all employees in the same building and provides unobstructed free access to them, it appears the intent of the standard would be met; however, one floor serving 20 floors does not appear reasonable or appropriate.

This interpretation is based on the Federal standard for sanitation. The State of Maryland, however, administers its own program of workplace safety and health standards under the authority of Section 18 of the Occupational Safety and Health Act. The Maryland program generally adopts standards identical to the equivalent Federal standards.

For information on the Maryland program you may contact:

Nancy Burkheimer, Deputy Commissioner Maryland Division of Labor and Industry Department of Licensing and Regulation 501 St. Paul Place Baltimore, Maryland 21202 Telephone: (301) 659-4176 If I may be of further assistance, please feel free to contact me.

Sincerely,

Thorne G. Auchter Assistant Secretary

 Standard Interpretations - Table of Contents

UNITED STATES DEPARTMENT OF LABOR

Occupational Safety and Health Administration 200 Constitution Ave., NW, Washington, DC 20210  800-321-6742 (OSHA) TTY www.OSHA.gov

FED ERAL GOVERNM EN T OCCUPATIONAL SAFETY AND HEA LTH ABOUT THE SITE

White House Frequently Asked Questions Freedom of Information Act Affordable Care Act A - Z Index Privacy & Security Statement Disaster Recovery Assistance Freedom of Information Act Disclaimers USA.gov Read the OSHA Newsletter Important Web Site Notices Disability.gov Subscribe to the OSHA Newsletter Plug-ins Used by DOL Plain Writing Act OSHA Publications RSS Feeds from DOL Recovery Act Office of Inspector General Accessibility Statement No Fear Act U.S. Office of Special Counsel UNITED STATES DEPARTMENT OF LABOR EXHIBIT I

OSHA English | Spanish

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ABOUT OSHA WORKERS EMPLOYERS REGULATIONS ENFORCEMENT TOPICS NEWS DATA TRAINING

 Standard Interpretations - Table of Contents

• Standard Number: 1910.141; 1910.141(c)(1)(i)

This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any situation not delineated w ithin the original correspondence.

April 23, 2003

Professor Marc Linder College of Law University of Iowa Iowa City, IA 52242

Dear Mr. Linder:

This is a further response to your letter to me of December 10, 2002. You asked the following questions about the impact of OSHA's April 6, 1998 memorandum to the OSHA Regional Administrators concerning the interpretation of OSHA's sanitation standard for general industry 29 CFR §1910.141(c)(1)(i) as it applies to workers' use of toilet facilities. We apologize for the delay in responding.

Question: I hear criticism from managers who say that the OSHA interpretation stating that employers have to let workers go to the bathroom when they need to go makes it impossible for management (without risking a citation) to police abuses by employees who say they have to void, but are really faking and just want to loaf. How would you respond to employers who say that OSHA has in effect deprived them of their right to discipline slackers?

Response: The interpretation was written as guidance for OSHA compliance officers in evaluating situations concerning workers' complaints about access to toilet facilities when the workers needed to use them. The interpretation should not be seen as interfering with management's right/ability to discipline workers who are violating legitimate work rules. As the April 6, 1998 interpretation states, an employer is not prohibited from having reasonable restrictions on access to toilet facilities. The interpretation requires OSHA's compliance officers to evaluate employer restrictions on a case-by-case basis, giving careful consideration to such factors as the nature of the restriction, including the length of time that workers are required to delay bathroom use, and the employer's explanation for the restriction.

Question: In retrospect would it have been simpler to have issued, instead of an interpretation prescribing a performance (reasonableness) standard, one that mandated a quantitative standard requiring employers to let workers go to the bathroom at least every x minutes or hours?

Response: No. The "reasonableness" criterion is consistent with the generally worded requirement in §1910.141(c)(1)(i). Furthermore, it would be difficult to set a specific interval for breaks, because the need to use toilet facilities varies from person to person and even with respect to the same person. Some of the variables that can affect a worker's need to urinate are: diet, stress, pregnancy, prostate health, other medical conditions, medication use, weather temperature (working in a cold environment makes people need to urinate more frequently), and the amount and type of fluid consumed.

Also, in some workplaces the nature of the work or the tasks being performed may require constant worker coverage/attention. In such situations employers need flexibility in developing procedures that will allow all of their workers access to toilet facilities as needed. A specific schedule for breaks might not allow the flexibility needed to address all types of work situations.

Question: Do you have some sense of what the effect of the interpretation has been? Has it produced greater compliance by employers? More complaints by workers? More citations issued by OSHA? Or are there other ways of determining what the effect has been?

Response: Within the first year after issuing the interpretation, articles appeared in several newspapers around the country, and OSHA's office in Washington, DC received calls from various employer and employee groups asking questions about the interpretation. We believe that the interpretation has produced a greater awareness and sensitivity about this issue among the employer community, as well as providing direction to OSHA staff in responding to complaints and questions regarding this issue.

Since we have not asked our area offices to keep track of employee complaints regarding §1910.141(c)(1)(i) and employee access to toilet facilities, we have no way of knowing if the interpretation itself has produced more complaints. But, we asked our area offices to send copies of all citations issued to employers for failure to allow employee access to toilet facilities. By the end of 2002, OSHA had issued only about twelve such citations.

In discussions with our area offices, we have found that the interpretation has helped the OSHA Area Directors and compliance officers encourage agreements between employers and workers on how to provide needed access to toilet facilities. Issuing a citation does not in itself resolve the problem. Therefore, the Area Directors and compliance officers first encourage employers and employees to work together to see how they can resolve their differences and create a system/procedure that will work in that particular workplace for that specific employer and employee(s).

Question: Is it lawful for an employer to charge employees to go to the bathroom or to make it unpaid time?

Response: Questions of pay for rest/bathroom breaks are not within OSHA's jurisdiction. The Employment Standards Administration, Division of Wage and Hour, has provided guidance at 29 CFR §785.18 (copy enclosed), but you may wish to contact that agency directly. State labor laws may also cover rest/bathroom breaks. The Wage and Hour Division office closest to you is the Des Moines District Office: 1 of 2 U.S. Department of Labor Employment Standards Administration Wage & Hour Division EXHIBIT I Federal Building 210 Walnut Street, Room 643 Des Moines, IA 50309-2407 Telephone: (515) 284-4625 Fax: (515) 284-7171

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters/memoranda explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any additional questions, please contact the Directorate of Enforcement Programs at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director Directorate of Enforcement Programs

Enclosure

 Standard Interpretations - Table of Contents

UNITED STATES DEPARTMENT OF LABOR

Occupational Safety and Health Administration 200 Constitution Ave., NW, Washington, DC 20210  800-321-6742 (OSHA) TTY www.OSHA.gov

FED ERAL GOVERNM EN T OCCUPATIONAL SAFETY AND HEA LTH ABOUT THE SITE

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 Standard Interpretations - Table of Contents

• Standard Number: 1910.141; 1910.141(c)

February 2, 2006

Mr. Charles R. Kubly 110 Bargstedt Lane Fonda, New York 12069

Dear Mr. Kubly:

This is in response to your letter dated April 18, 2005, which was sent to the U.S. Department of Labor and forwarded to the Occupational Safety and Health Administration (OSHA). This letter constitutes OSHA's interpretation only of the situation discussed and may not be applicable to any question or situation not delineated within your letter. You had specific questions concerning restroom usage at your place of employment. We apologize for the delay in responding.

Question 1: What are OSHA's regulations regarding bathrooms, and where can this regulation be found?

Response: OSHA's sanitation standard that addresses restrooms for general industry may be found in Title 29 of the Code of Federal Regulations, Part 1910, Section 141 (abbreviated as 29 CFR 1910.141). A copy is enclosed.

The Code of Federal Regulations (CFRs) may be found in the reference section of your local public library. You can also access the CFRs on the Internet through the Government Printing Office website at http://www.gpoaccess.gov/cfr/retrieve.html. The specific link to OSHA's sanitation standard is at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=29&PART=1910&SECTION=141&TYPE=TEXT.

Question 2: Are there any circumstances in which an employer could regulate restroom usage? Is the restroom allowed to be locked, thus requiring an employee to ask or to sign out a key in order to use the restroom?

Response: OSHA addressed the issue of employee access to toilet facilities in a memorandum to OSHA's Regional Administrators dated April 6, 1998. This memorandum is a public document and a copy is enclosed. In addition, the Agency also addressed this issue in a letter dated April 23, 2003, to Professor Marc Linder at the University of Iowa; a copy of that letter is also enclosed.

Memoranda and letters interpreting OSHA's sanitation standard may be accessed on the Internet through OSHA's website at www.osha.gov. When on the website click on "I" in the alphabet at the top of the page, then click on "Interpretations of OSHA Standards." When the next page comes up, type "1910.141" in the Text Search box and click on the search button.

If an employer puts any restrictions on employee access to toilet facilities, such as locking the doors and requiring the employees to ask and sign out a key, the restriction must be reasonable, and may not cause extended delays. If OSHA were to receive a complaint concerning such a restriction, the Agency would evaluate the situation on a case by case basis to examine the nature of the restriction, including the length of time that employees are required to delay bathroom use, and the employer's explanation for the restriction. The enclosed memorandum and letter provide additional guidance.

If you wish to discuss your situation or file a complaint with your local OSHA office, you may contact the following: John Tomich, Area Director U.S. Department of Labor Occupational Safety and Health Administration 401 New Karner Rd, Suite 300 Albany, NY 12205-3809 Telephone: (518) 464-4338 Fax: (518) 464-4337

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director Directorate of Enforcement Programs

Enclosures (3)

1 of 2  Standard Interpretations - Table of Contents EXHIBIT J UNITED STATES DEPARTMENT OF LABOR

Occupational Safety and Health Administration 200 Constitution Ave., NW, Washington, DC 20210  800-321-6742 (OSHA) TTY www.OSHA.gov

FED ERAL GOVERNM EN T OCCUPATIONAL SAFETY AND HEA LTH ABOUT THE SITE

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OSHA English | Spanish

Find it in OSHA  A TO Z INDEX

ABOUT OSHA WORKERS EMPLOYERS REGULATIONS ENFORCEMENT TOPICS NEWS DATA TRAINING

 Standard Interpretations - Table of Contents

• Standard Number: 1910.141(c)(1)(i)

OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov

March 10, 2014

Mr. Ryan Wiens Temple, Texas 76502

Dear Mr. Wiens:

I am writing in response to your February 19, 2014 email to President Barack H. Obama, regarding the use of toilet facilities within the workplace. The President asked the Occupational Safety and Health Administration (OSHA) to respond to your inquiry.

We regret to hear about your mother-in-law's working conditions. Please note that OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(1)(i), requires employers to provide their employees with toilet facilities:

Except as otherwise indicated in this paragraph (c)(1)(i), toilet facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section...

The sanitation standard's intent is that toilet facilities must be made available and that employees are able to use toilet facilities promptly. In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays.

We recommend your mother-in-law discuss her concerns regarding rest/bathroom breaks with her employer. If she wishes to file a workplace safety or health complaint, she or a representative should contact OSHA's local area office in Austin by calling (512) 374-0271 or 1-800-321-6742 or file online at https://www.osha.gov/as/opa/worker/complain.html.

Additionally, if her employer retaliates against her by taking unfavorable personnel action (i.e., firing or laying off, reduction in pay or hours or suspension) for raising a health and safety concern or filing a safety complaint with OSHA, she may file a complaint with OSHA within 30 days of the retaliation. She should contact OSHA as soon as possible in order to file her complaint within the legal time limits. She can file a discrimination complaint with OSHA by visiting or calling the local OSHA office (512) 374-0271 or filing it online http://www.osha.gov/whistleblower/WBComplaint.html

Casey Perkins, Area Director Austin Area Office La Costa Green Building 1033 La Posada Drive, Suite 375 Austin, Texas 78752-3832 Telephone: (512) 374-0271 Fax: (512) 374-0086

The question of pay for rest/bathroom breaks are not within OSHA's jurisdiction. The Employment Standards Administration, Division of Wage and Hour, has provided guidance at 29 CFR §785.18, but you may wish to contact that agency directly, http://www.dol.gov/whd/contact_us.htm. State labor laws may also cover rest/bathroom breaks. The Wage and Hour Division office closest to you is the Dallas District Office:

US Department of Labor Employment Standards Administration Wage & Hour Division 1701 E. Lamar Blvd., Suite 270, Box 22 Arlington, TX 76006-7303 Telephone: (817) 861-2150

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters/memoranda explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any additional questions, please contact the Directorate of Enforcement Programs at (202) 693-1850.

Sincerely,

Thomas Galassi, Director Directorate of Enforcement Programs

 Standard Interpretations - Table of Contents UNITED STATES EXHIBIT K DEPARTMENT OF LABOR

Occupational Safety and Health Administration 200 Constitution Ave., NW, Washington, DC 20210  800-321-6742 (OSHA) TTY www.OSHA.gov

FED ERAL GOVERNM EN T OCCUPATIONAL SAFETY AND HEA LTH ABOUT THE SITE

White House Frequently Asked Questions Freedom of Information Act Affordable Care Act A - Z Index Privacy & Security Statement Disaster Recovery Assistance Freedom of Information Act Disclaimers USA.gov Read the OSHA Newsletter Important Web Site Notices Disability.gov Subscribe to the OSHA Newsletter Plug-ins Used by DOL Plain Writing Act OSHA Publications RSS Feeds from DOL Recovery Act Office of Inspector General Accessibility Statement No Fear Act U.S. Office of Special Counsel