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Work Advice: PTO means Potty Time Off?

Q: I work at a large call center. Performance is strictly measured by phone stats; if you are unavailable during your scheduled work time, it affects your stats. We get two 20-minute breaks (paid) and a 35-minute lunch (unpaid). We have one "bucket" of paid time off for all sick, personal and vacation leave, and all PTO is either "excused" or "unexcused." Time off scheduled well in advance is excused. Calling in sick, emergencies, a family member's surgery are all unexcused. Unexcused absences are heavily frowned upon, and having too many can affect your annual bonus or chances of promotion.

Many of us therefore claim Family and Medical Leave Act (FMLA) leave for those medical absences. Time off under FMLA is still deducted from your PTO, but it becomes excused. We are allowed to make up four hours of PTO time during the same workweek, but not on the same day we use it - so lost time on a Friday can't be made up.

I have irritable bowel syndrome, and maybe twice a month I am in the restroom for an additional 20 to 25 minutes. Last week, I was told that this was affecting my phone stats and that I should use FMLA leave so that extra bathroom time will be excused, plus PTO if I want to be paid. Is it legal to make someone use PTO and FMLA to go to the bathroom?

A: Call me entitled, but a business that tracks time spent on natural functions is Just Not a Nice Place to Work.

According to employment lawyer Sharon Snyder, of Ober Kaler, the real question is whether your employer can dock you for breaks shorter than 30 minutes. Even if your employer counts your involuntary bathroom time apart from your regular daily breaks, it may not be kosher to treat it as off-the-clock time. Generally, the Labor Department considers "short" breaks of 15 to 20 minutes to be payable work time; Snyder says that gap between 20 and 30 minutes is a "gray area," which I read as "requiring legal action and possibly carrying a stopwatch to the loo to resolve."

For a potentially less litigious resolution, Snyder notes that your irritable bowel syndrome is "likely a disability protected by the Americans With Disabilities Act." If a doctor confirms that, you are legally entitled to a "reasonable accommodation" - for example, counting an emergency bathroom trip as one of your daily breaks, or allowing you more flexibility to make up time - and your employer can't punish you for it.

Snyder adds that it's "not unfair" if your bonus is reduced because you generate less revenue. That said, you might politely press your supervisor to show you how 40 to 50 unexcused minutes per month is seriously harming your stats. I suspect that hearing "ADA" and "reasonable accommodation" will inspire management to find an alternative to nickel-and-diming you over those unavoidable unproductive minutes. (Write back if the alternative involves wearing a headset in the bathroom.)

• Miller has written for and edited tax publications for 16 years, most recently for the accounting firm KPMG's Washington National Tax office. You can find her on Twitter, @KarlaAtWork.

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