COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 341

(By Senators Stollings and Foster)

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[Originating in the Committee on Health and Human Resources;

reported February 10, 2012.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-44-1, §16-44-2, §16-44-3, §16-44-4 and §16-44-5, all relating to access to nonpublic restrooms by individuals with certain medical conditions and under specified circumstances; and providing criminal penalty for violation.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-44-1, §16-44-2, §16-44-3, §16-44-4 and §16-44-5, all to read as follows:

ARTICLE 16. PUBLIC HEALTH.

ARTICLE 44. RESTROOM ACCESS ACT.

§16-44-1. Short title.

    This article shall be known as the Restroom Access Act.

§16-44-2. Definitions.

    As used in this article:

    (1) “Customer” means a person or individual who is lawfully

on the premises of a retail establishment;

    (2) “Eligible medical condition” means any medical condition that requires immediate access to a toilet facility as determined by a health care provider. These conditions include, but are not limited to, Crohn’s disease, ulcerative colitis, any inflammatory bowel disease or irritable bowel syndrom;

    (3) “Retail establishment” means a place of business open to the general public for the sale of goods or services to an ultimate consumer. A retail establishment includes, but is not limited to, a grocery store, mercantile, delicatessen or any place where merchandise is displayed, held or offered for sale.

    (4) “Medical alert restroom access card” means a card provided by the Foundation for Clinical Research in Inflammatory Bowel Disease or other nationally recognized organization indicating that the carrier has an eligible medical condition and needs immediate access to a toilet facility.

§16-44-3. Customer access to restroom facility; retail establishment.

    (a) A retail establishment which has a toilet facility for its employees that is not open to the general public shall allow a customer to use that toilet facility during normal business hours if the following conditions are met:

    (1) The customer requesting the use of the toilet facility suffers from an eligible medical condition or uses an ostomy device;

    (2) The customer requesting access presents a medical alert restroom access card which contains language that states the holder has an eligible medical condition as defined in section two of this article and requires immediate access to a toilet facility.

    (3) Three or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility;

    (4) The retail establishment does not normally make a restroom available to the public;

    (5) The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment; and

    (6) A public restroom is not immediately accessible to the customer.

    (b) Nothing in this article shall be construed to require a retail establishment to open an employee only restroom to the general public. The restroom shall remain a private, employee only restroom.

§16-44-4. Limitation of liability.

    (a) A retail establishment or an employee of a retail establishment is not civilly liable for any action or omission in allowing a customer that has an eligible medical condition to use an employee toilet facility that is not a public restroom if the act or omission:

    (1) Is not willful or grossly negligent;

    (2) Occurs in an area of the retail establishment that is not accessible to the public; and

    (3) Results in an injury or death to the customer, or any individual other than an employee accompanying the customer.

    (b) A retail establishment is not required to make any physical changes to an employee toilet facility under this article.

§16-44-5. Penalties for violations.

    A retail establishment or an employee of a retail establishment that violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100.

    NOTE: The purpose of this bill is to provide access to private employee restrooms for persons with certain eligible medical conditions.

    This article is new; therefore, strike-throughs and underscoring have been omitted.