FDNY Denial of Facial Hair Accommodation doesn’t Violate ADA

Frank Ferreri

New York, NY (WorkersCompensation.com) – When an Occupational Safety and Health regulation and a reasonable accommodation request conflicted, the 2d U.S. Circuit Court of Appeals found that the Americans with Disabilities Act did not require the New York City Fire Department to relent on safety standards.

According to the 2d Circuit in Bey v. City of New York, Nos. 20-456, 20-650 (2d Cir. 06/09/21), four firefighters with skin irritation and pain related to shaving could not show that an exemption to a safety rule barring facial hair with respirators was reasonable.

Shaving, Pain

The firefighters each had a skin condition called pseudofolliculitis barbae. The effects of shaving with PFB include skin irritation, bruising, and boils. The firefighters sought an exemption from FDNY rules requiring firefighters to be clean shaven in the neck, chin, and cheek area.

New York law requires FDNY to comply with OSHA regulations, including 29 CFR 1910.134(g)(1)(i)(A), which prohibits facial hair from coming between the sealing surface of a mask and the wearer’s face to ensure that the respirator achieves a proper seal.

Despite the regulation, FDNY began offering accommodations to firefighters with PFB in 2015. Those accommodations allowed firefighters to maintain closely cropped beards. To ensure that accommodations didn’t interfere with respirator performance, FDNY required firefighters to pass a “fit test” to ensure a proper respirator seal.

Although 20 firefighters took advantage of the accommodation without any adverse safety incidents, in 2018, FDNY determined that the accommodation was prohibited by the OSHA rule and once again required all firefighters to be clean shaven.

In response, the firefighters sued, claiming that FDNY violated the ADA by not allowing the facial hair accommodation.

The District Court held in the firefighters’ favor, finding that OSHA has interpreted its regulation to permit medical accommodations and that the firefighter’s proposed accommodation was reasonable. FDNY appealed to the 2d Circuit.

Accommodations, Federal Standards

The ADA requires employers to make reasonable accommodations to the known physical or mental limitations of employees unless the accommodation would impose an undue hardship. Additionally, ADA regulations at 29 CFR 1630.15(e) specify that it is a defense to ADA liability if another federal law or regulation prevents a reasonable accommodation.

In the firefighters’ case, the 2d Circuit reasoned that the FDNY could rely on this defense to reject the accommodation request.

“An employer cannot be held liable for failing to offer an accommodation that is expressly prohibited by binding federal law,” the court explained, finding support in the U.S. Supreme Court’s decision in Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999).

Following the standards of the Albertson’s ruling, the 2d Circuit found that the following principles applied to the firefighters’ case:

  • Employers should not be required to defend their adherence to a binding federal safety regulation, even when that regulation conflicts with the goals of the ADA.
  • The fact that no adverse safety events were reported during the period when the FDNY allowed firefighters to avoid shaving did not preclude the FDNY from enforcing the respiratory-protection standard.
  • The FDNY’s prior interpretation of the OSHA regulation “is not deserving of any particular deference,” so it didn’t matter that the department previously allowed beards.

“At bottom, OSHA’s regulations are binding on the FDNY and prohibit the accommodation that the firefighters seek,” the 2d Circuit reasoned, reversing and remanding the firefighters’ ADA claims to the lower court.

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