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.