COMMITTEE SUBSTITUTE

FOR

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 341

(By Senators Stollings and Foster)

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[Originating in the Committee on Government Organization;

reported February 16, 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 creating the Restroom Access Act; requiring access to employee-only restrooms by individuals with certain medical conditions who present a valid medical alert restroom access card under specified circumstances; limiting liability to the establishment; 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 restroom 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 syndrome.

    (3) “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 restroom.

    (4) “Restroom” means a toilet facility.

    (5)“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.

§16-44-3. Customer access to employee-only restroom facility.

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

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

    (2) The customer requesting access to an employee-only restroom presents a valid medical alert restroom access card which contains language that states the holder has an eligible medical condition and requires immediate access to a restroom;

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

    (4) The restroom 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

    (5) 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 employee-only restroom shall remain private.

§16-44-4. Limitation of liability.

    (a) A retail establishment or an employee of a retail establishment is not civilly liable for any act or omission for allowing a customer that has an eligible medical condition and presents a valid medical alert restroom access card to use an employee-only 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-only restroom 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.