Was it OK to require men to shave so their respirators would fit properly?

“We were stuck between a rock and a hard place,” said Tiffanie, the supervisor. “If we continued to provide that disability accommodation to those 20 male employees, we would’ve been in violation of federal safety regulations.”

“Yes, I can see how it was a problem,” said Arturo, the plant manager. “However, we now have a lawsuit on our hands. The men with the skin condition are suing us for disability discrimination.”

“That’s hard to believe,” said Tiffanie. “Look, I’m sympathetic to the fact that these male staffers have a skin condition that results in persistent irritation and pain after they shave, but we were justified in insisting that they shave.”

“How so?” asked Arturo.

“The men work in jobs that require them to wear a respirator,” said Tiffanie. “If they don’t shave, their respirators might not fit and we could be cited by the Occupational Safety and Health Administration for violating its respiratory protection standard.”

“The male workers allege that we accommodated their condition for three years and nothing bad ever happened,” said Arturo. “How did we accommodate them for three years?”

“We let the workers have closely cropped beards that didn’t interfere with the fit of the respirators,” said Tiffanie. “In truth, there were no problems during the three years. However, a new manager decided that we were playing Russian roulette with safety laws, so we pulled the disability accommodation.”

“The staffers with the skin condition weren’t pleased after their accommodation was rescinded,” said Arturo.

“I know they weren’t,” said Tiffanie. “However, we offered them the chance to switch to jobs that didn’t require the use of respirators, but none of them picked that option.”

“The workers claim that OSHA has since modified its original standard to allow people to wear closely cropped beards as long as they can pass a respirator fit test,” said Arturo.

“We based our decision on the original OSHA rule, not on any modifications to it,” said Tiffanie.
“It sounds like we tried to make the best out of a difficult situation,” said Arturo. “We’ll fight this lawsuit.”

Result: The employer won. The court dismissed the disability bias case.

The judge said it was OK for the employer to have rescinded the accommodation based on its belief that allowing the workaround might have run afoul of OSHA rules.

The court decided that the disabled employees couldn’t insist that their employer provide an accommodation that potentially violated a federal safety regulation.

Even though the accommodation was provided for three years without incident, the court said the employer honestly believed the workaround conflicted with a safety rule, so the decision to pull it wasn’t discriminatory.

And the employer was allowed to base its decision on its own interpretation of the original OSHA rule rather than on subsequent modifications to the rule.

Based on Bey v. City of New York.

(From the July 26, 2021, issue of Safety Alert for Supervisors. To start your no-obligation trial subscription to the publication right now, please click here.)