This morning I read a recent post from Suzanne Lucas the “Evil HR Lady”, an HR blogger that provides similar common sense observations about employment issues.  The post was an answer to a supervisor question about an employee who drinks so much water and has to pee so often that she can’t get her work done.

The Evil HR Lady recommended focusing on the performance issue out of concern that the employee – who happened to become pregnant after the water break issue arose – would make a pregnancy discrimination claim.  I can’t argue too much with this practical approach, but I think she is leaving a little bit on the table.

Without all of the facts, there appear to be two primary legal concerns to consider here: (1) pregnancy discrimination; and (2) a disibility act claim.  As you should all know, you cannot discriminate against someone because they are pregnant.  Likewise you should all realize you can’t discriminate against someone because they have a disability.

Practically speaking, this can’t be pregnancy discrimination because the pee break issue started before pregnancy.  It also can’t be a disability issue yet because the employee has not claimed it as one.  Employers are not obligated (unless they have inquired) to accommodate a disability or health issue until the employee raises it as one and can back it up with a medical opinion.

Before the employee stumbles into the protection of one of these laws, the employer should address it.  That doesn’t mean be unreasonable.  The performance appraisal that the Evil HR Lady suggests is a good suggestion for part of the plan, but I think the employer should also set reasonable limitations on the water use and bathroom breaks.  If the employee wants water, great, she can keep a jug by her desk.  That will eliminate the back and forth to the water cooler.  If the employee still has to use the restroom, she can go once an hour or so, but no more.  She needs to set her drinking habits with that in mind.

People have to make those adjustments all the time at work.  Do you think I am going to ask a judge for a restroom break during the middle of a trial?  Not unless the world is coming to an end.  The same is true of the jurors.  They adjust their water intake.  This employee can do the same.