Royal Flush: Another California Agency Seeks To Change Its Rule Regarding Single User Non-Flush Toilets

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12/11/2017

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Royal Flush: Another California Agency Seeks To Change Its Rule Regarding Single User Non-Flush Toilets

 By: Gregory Blueford

The Fair Employment and Housing Council (“FEHC”) recently voted to submit an emergency rule change to the Office of Administrative Law (“OAL”) to align their regulations with Cal/OSHA and the Department of Industrial Relations (“DIR”) regarding signage for single user non-flush toilets. As you may know, Assembly Bill 1732, effective March 1, 2017, requires that all single-user restroom facilities be identified as “all-gender” restrooms. 

Following the AB 1732’s passage, there was uncertainty in the agricultural industry as to what was required in the field, as AB 1732 appeared to directly conflict with a Cal/OSHA regulation, which requires separate toilets in the field for each gender. On March 20, 2017, the DIR released a FAQ that aligned with Cal/OSHA’s requirements and clarified that AB 1732 only applies to single-user restrooms with “flush” toilets, meaning that non-flush toilets (i.e. “porta-potties”) which are commonly used in the field are not subject to AB 1732’s “all-gender” decal requirement.

The FEHC’s proposed regulation to OAL seeks to eliminate the apparent conflict with both Cal/OSHA and the DIR’s guidance. FEHC’s current law states that single-user facilities shall use gender-neutral signage. The proposed regulation seeks to add that the FEHC’s current law does not apply to certain industries with single-user, non-water “disposal facilities” (i.e. “porta-potties”), including but not limited to, agricultural operations and construction. Once submitted, the proposed rule will undergo a five day public comment and OAL review. If approved, the rule will become effective for 180 days to give the agency time to make the regulation permanent through the normal rule making process.

COUNSEL TO MANAGEMENT

This proposed emergency rule basically codifies the DIR’s FAQ guidance and brings all of the rules from all of the agencies into sync. Nonetheless, it is a welcome change to the rules so that there is no confusion as to employers’ requirements regarding single use facilities. We still would like to remind you that agricultural employers with single-user bathrooms with flush toilets in their facilities are subject to AB 1732 and must ensure that those single-user bathrooms are properly identified as “all-gender.”  Additionally, we continue to recommend that employers allow employees to use whichever restroom corresponds with the gender with which they identify. If you have any questions regarding bathroom-related requirements, please contact the experts at The Saqui Law Group.

 

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