Compliance Perspectives: What to Do When Respiratory Safety & Religious Rights Collide

THE SCENARIO

A lab requires all employees who work with or near materials emitting toxic vapors to wear respirators with tight-fitting facepieces. Since facial hear interferes with a tight seal, the lab adopts a no-beards policy for those employees. One employee, a practicing Sikh, refuses to obey the new policy because his religion requires men to have beards.

What would you do in this situation?

Respiratory Safety v. Religious Rights

Rule 1: OSHA: Employers must ensure that tight-fitting respirators form a complete seal with the face and not let employees use such respirators if their facial hair compromises the required seal (OSHA Respiratory Protection Standard, Section 1910.134(g)(1)).

Rule 2: Anti-Discrimination Laws: Employers must make reasonable adjustments in employment policies to accommodate the religious beliefs of their employees (Title VII, Civil Rights Act of 1964).

Both rules serve important purposes: Rule 1 protects employees’ safety; Rule 2 protects their religious freedom. But sometimes the rules conflict.

Resolving the Respirator v. Religion Dilemma

In fact, the dilemma has an escape hatch. But you can’t crawl through it unless you understand a few things about the law.

The key: Accommodation doesn’t mean doing anything and everything the employee wants. You need only make accommodations that are “reasonable” and don’t cause you “undue hardship.”

Unfortunately, there are no bright line definitions. The question of whether a particular accommodation is “reasonable” or “undue hardship” is left for courts, arbitrators and tribunals to sort out case by case. The good news is that you can use previous court cases to figure out what to do if you get requests for religious accommodations from your own employees.

Respirator v. Religion: The Chevron Case

That scenario we posed above isn’t hypothetical. It’s based on an actual case. And while it happened at a manufacturing plant (operated by Chevron) and involved machinists, the same principles apply to labs.

Upon getting the memo announcing the no-beard policy, the machinist, who had been with Chevron for several years, notified his supervisor that he couldn’t comply because of his religion.

Chevron temporarily suspended him without pay while it looked for jobs he could do without using a respirator. But it took over six weeks to find him a position. And the new job—janitor—was less challenging and paid 17% less. After initially taking the job, the machinist had second thoughts and sued Chevron for not letting him continue working as a machinist.

Question: Did Chevron do enough to accommodate the machinist?

Answer: Yes, the federal court said. Since Chevron couldn’t and wouldn’t force him to shave, there were only 2 ways it could let him keep working as a machinist:

• Assign him duties involving exposure to toxic gases knowing his respirator didn’t fit properly; or

• Assign him only duties not involving exposure to toxic gases.

Option 1 would force the company to risk not only the machinist’s safety but liability under OSHA (Cal-OSHA in this case).

Option 2 would force the company to revamp its entire assignment system and expose co-workers to more assignments involving exposure to toxic gases to pick up the slack.

Both options would impose undue hardship on Chevron, the court concluded, and dismissed the claim [Bhatia v. Chevron USA Inc.,734 F2d 1383, U.S.C.A. 9th Cir., 1984].

WHAT TO DO

So, let’s go back to the scenario. What would you do if an employee refused to obey a no-beards policy on religious grounds?

Step 1: Ensure No Beards Policy Is Really Necessary for Safety

The first thing to do is conduct a personal protective equipment (PPE) hazard assessment and consider whether you really need a no-beards policy to ensure safety. Remember that facial hair is only a problem if you’re using tight-fitting respirators. So, consider whether you can safely allow employees to use a respirator that doesn’t require a face seal and thus can be used by employees with beards, e.g., positive pressure hood and helmet type respirators and respirators and respirators that can be used with a continuous-flow, supplied-air respirator.

Step 2: Look for Ways to Exempt Employee from Policy

Firing an employee on the spot for refusing to obey a no beards policy is a failure to accommodate that will make you liable for religious discrimination. To its credit, Chevron didn’t do this. Instead, it looked for accommodations that would allow the machinist to keep his job and his beard. And if you ever confront the situation, you’ll be expected to do the same thing. Questions to ask:

• Can you let the employee keep his job and assign him only duties that don’t involve exposure to hazards requiring him to use the tight-fitting respirator?

If the answer is NO:

• Can you assign the employee to a similar job not involving the use of respirators with the minimum loss of salary and benefits?

If the answer is NO:

Step 3: Don’t Compromise Safety for Religion

When push comes to shove and no less restrictive accommodations are available, protecting workplace safety takes precedence over religious rights. In other words, you don’t have to violate respiratory protection or other OSHA laws to accommodate an employee’s religious preference. Or, to state it in legal terms, violating laws designed to ensure employees’ safety is an undue hardship, not a reasonable accommodation.

But remember that push only comes to shove when you determine that no reasonable alternatives that will protect respiratory safety are available.