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The 193rd General Court of the Commonwealth of Massachusetts

Section 26: Use of employee restroom by customer suffering from eligible medical condition or using ostomy device; non-liability; penalty for violation

Section 26. (a) For the purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

''Customer'', an individual who is lawfully on the premises of a retail establishment.

''Eligible medical condition'', Crohn's disease, ulcerative colitis or any other medical condition that requires immediate access to a restroom facility.

''Retail establishment'', any business or place where members of the public have access as invitees or licensees.

(b) A retail establishment that has a restroom facility for its employees shall allow a customer to use that facility during normal business hours if the following conditions are met:

(1) the customer requesting the use of the employee restroom facility suffers from an eligible medical condition or uses an ostomy device, provided that the existence of the condition or device is documented in writing by the customer's physician;

(2) three or more employees of the retail establishment are working at the time the customer requests to use the employee restroom facility;

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

(4) the employee restroom 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 establishment; and

(5) a public restroom is not immediately accessible to the customer.

(c) A retail establishment, or an employee of a retail establishment, shall not be civilly liable for an act or omission in allowing a customer who claims to have an eligible medical condition to use an employee restroom facility that is not a public restroom if the act or omission: (i) is not negligent and occurs in an area of the retail establishment that is not generally accessible to the public; and (ii) results in injury to or death of the customer or individual, other than an employee, accompanying the customer.

(d) This section shall not require a retail establishment to make any physical changes or improvements to an employee restroom facility located on the premises.

(e) A violation of this section shall for the first offense be punished by a fine of $100. A second or subsequent offense shall be punished by a fine of not less than $100 nor more than $200.