Enforcement and Inspection, Regulatory Developments

Ignoring OSHA Safety Standard Not ‘Reasonable’ Accommodation

Most employers know the Americans with Disabilities Act (ADA) requires them to consider a disabled employee’s request for a reasonable accommodation so she can perform an essential function of her position. In a recent decision, the U.S. Court of Appeals for the Second Circuit (whose rulings apply to all New York employers) held an employee’s request for an accommodation that deviated from an Occupational Safety and Health Administration (OSHA) safety standard wasn’t reasonable. The decision is important to employers that must follow federal or state safety standards. 

Background 

Salik Bey and three other black Fire Department of New York (FDNY) firefighters sued New York City and others alleging the city failed to accommodate them under the ADA. They alleged they had a skin condition called pseudofolliculitis barbae or “PFB” that causes pain and scarring when shaving facial hair and requested an exemption to the city’s policy that firefighters must be clean-shaven. 

FDNY denied the request based on OSHA regulations that require a firefighter’s respirator used to enter burning buildings be able to seal against the firefighter’s skin. It reasoned a beard would interfere with the firefighter’s ability to use the respirator. The decision ended a program that granted exemptions to 20 black firefighters afflicted with PFB, including Bey and the other three firefighters. 

The district court granted summary judgment (dismissal without a trial) on the ADA claim to the firefighters, finding the request was reasonable, and dismissed the balance of their claims, including their claims under Title VII of the Civil Rights Act of 1964 and state law. 

The city appealed to the Second Circuit on the ADA claim, and the firefighters cross-appealed the dismissal of their Title VII and other claims. 

Not ‘Reasonable’ to Ignore The OSHA Standard 

The Second Circuit reversed summary judgment for the firefighters, holding the OSHA regulations provide a complete defense to the ADA failure-to-accommodate claim. Here, the OSHA standard prohibits facial hair from “com[ing] between the sealing surface of the [mask] and the [wearer’s] face” to ensure the respirator achieves a proper seal. The court held an employer shouldn’t be required to defend its adherence to a federal safety regulation when it conflicts with the goals of the ADA. It wrote, “Accordingly, the respiratory-protection standard clearly requires firefighters to be clean shaven where [a respirator] seals against their face. Because we find the regulation to be unambiguous, we can end our analysis there.” 

The Second Circuit went on to hold that: 

An accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency. Whether that is because the illegality of the accommodation presents an “undue hardship” as the FDNY suggests, or because the existence of the federal regulation is itself an affirmative defense, makes little difference. 

The Second Circuit reversed the district court and affirmed the dismissal of the firefighters’ non-ADA claims. Salik Bey, et al. v City of New York, et al. __F.3d__ (2d Cir. 2021). 

Takeaways 

Employers subject to federal or state law safety regulations have a good basis to deny requests for a reasonable accommodation in which the employee seeks to avoid application of the regulation. Importantly, the Second Circuit found FDNY’s earlier beard exemption program to be irrelevant based on its 2018 review and finding that the program violated an unambiguous OSHA regulation. 

Notwithstanding the decision, you are still cautioned to engage in the interactive process and consider employees’ requests. A refusal to engage in the interactive process may lead to a separate claim. Consult with employment counsel on tricky ADA accommodation issues. 

The author may be reached at psweeney@cglawoffices.com or 607-723-9511.