Ignoring OSHA Security Normal Not ‘Cheap’ Lodging

Most employers know that the Americans with Disabilities Act (ADA) requires them to consider a disabled worker’s request for reasonable accommodation to perform an essential function of their position. In a recent ruling, the U.S. Second District Court of Appeals (whose rulings apply to all New York employers) found a worker’s request for housing that deviated from an Occupational Safety and Health Administration (OSHA) standard as inappropriate . The decision is important to employers who must meet federal or state safety standards.

background

Salik Bey and three other black firefighters from the New York Fire Department (FDNY) sued New York City and others who alleged the city did not house them under the ADA. They said they had a skin condition called pseudofolliculitis barbae, or “PFB”, which causes pain and scars when shaving facial hair, and requested an exemption from the city’s policy that firefighters must be clean-shaven.

FDNY declined the request due to OSHA regulations requiring that a firefighter’s respirator used when entering burning buildings can seal against the firefighter’s skin. It argued that a beard would affect the firefighter’s ability to use the respirator. The decision ended a program that granted exemptions to 20 black firefighters affected by PFB, including Bey and the other three firefighters.

The District Court gave the firefighters a summary judgment (dismissal without trial) on the ADA claim, found the claim to be reasonable, and dismissed the remainder of their claims, including their claims under Title VII of the Civil Rights Act of 1964 and State Law .

The city appealed the ADA claim to the Second Circuit, and the firefighters appealed the rejection of their Title VII and other claims.

It is not “reasonable” to ignore the OSHA standard

The Second Circuit overturned the summary judgment for the firefighters, with OSHA regulations providing a full defense against the ADA’s claim for non-compliance. Here the OSHA standard prohibits facial hair from “com”[ing] between the sealing surface of the [mask] and the [wearer’s] Face ”to make sure the respirator seals properly. The court ruled that an employer should not be required to defend its compliance with a federal safety ordinance if doing so goes against the aims of the ADA. It says: “Accordingly, the respiratory protection standard clearly requires that firefighters are shaved clean wherever [a respirator] seals her face. Since we perceive the regulation as clear, we can end our analysis there. ”

The Second Circle continued that:

Accommodation is unreasonable within the meaning of the ADA if it is expressly prohibited by a binding safety regulation of a federal authority. It makes little difference whether this is because the illegality of the placement represents “undue hardship”, as the FDNY suggests, or the existence of the federal ordinance itself represents an affirmative defense.

The Second Circuit overturned the district court and upheld the dismissal of the firefighters’ non-ADA claims. SalikBey et al. v City of New York et al. __F.3d__ (2nd Cir. 2021).

Takeaways

Employers who are subject to federal or state safety regulations have a good basis for rejecting requests for reasonable accommodation that the employee is trying to avoid applying the regulation. Importantly, based on its review in 2018 and finding that the program violated a clear OSHA regulation, the Second Circuit found FDNY’s previous beard removal program to be irrelevant.

Regardless of the decision, you will still be asked to participate in the interactive process and to consider the inquiries of the employees. A refusal to participate in the interactive procedure can lead to a separate claim. Consult an employment advisor with difficult ADA housing issues.

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

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