FDNY Does not Have to Accommodate Firefighters’ Disability

The Americans with Disabilities Act is a federal law which requires, among other things, that employers provide reasonable accommodations to employees with disabilities. But, what if, by providing an accommodation, the employer would be violating another federal law? Must the employer still provide that accommodation? Recently, the Second Circuit Court of Appeals in New York weighed in on this question. Today’s Long Island employment law blog discusses the Bey v. City of New York decision.

The Fire Department of New York (FDNY) maintains a policy that requires all firefighters to shave their facial hair in order to wear a tight fitting respirator to protect the firefighters from smoke and toxic fumes. The policy allowed for only short sideburns and trimmed mustaches that do not affect the area where the mask meets with skin.

Pseudofolliculitis Barbae (“PFB”) is a skin condition which causes pain, irritation, and scarring to men who shave with PFB. In other words, men with PFB cannot shave without enduring pain, irritation and scarring. PFB is more prevalent among black males than white males. Firefighters are not immune from PFB, thus some firefighters suffer from PFB, putting their medical condition on a collision course with the FDNY facial hair policy.

In 2015, the FDNY began offering medical accommodations to firefighters with PFB. These firefighters had to take a “fit test” which is a standardized test designed by OSHA to ensure that a respirator properly seals against the mask-wearer’s face. As long as the firefighter could pass the fit test with facial hair, the firefighters were not required to shave in accordance with the facial hair policy, as an accommodation.

But, after further review, in 2018 the FDNY revoked this program and required all employees to be clean shaven. The FDNY determined that the accommodation was prohibited by federal OSHA regulations which require a respirator to be tight-fitting to an employee’s face. Further, OSHA prohibits any facial hair that comes between the sealing surface and the face, stating specifically that mask wearers must be clean shaven at the sealing points. In other words, after 2018, the FDNY required all firefighters to shave in accordance with the facial hair policy, including the FDNY firefighters with PFB, who could not shave without pain and irritation.

Some firefighters suffering from PFB sued the FDNY alleging it discriminated against them in violation of the ADA by refusing to offer them a medical accommodation. Further, the firefighters argued that because more black firefighters suffer from PFB than white firefighters, the FDNY policy discriminated on the basis of race. Initially, the District Court agreed with the firefighters and ruled that the FDNY violated the ADA, but not Title VII. The City then appealed.

The City argued, primarily, that FDNY could not provide an accommodation to the firefighters which allowed them to not shave because such an accommodation would require FDNY to violate the OSHA rules. In response, the firefighters argued that the OSHA rules were ambiguous and allowed for minimal facial hair growth at the sealing points.

The Second Circuit disagreed with the firefighters. The court found no ambiguity in OSHA’s rules and that the rules plainly required firefighters to be clean shaven at the sealing points.

Finding no room for an accommodation in the OSHA rules, the appellate court then had to determinate whether the existence of the OSHA rules trumps the ADA’s requirement that FDNY provide accommodations. On this point, the firefighters argued that since they were given the accommodation for years without having a safety incident, proof exists that the accommodation can reasonably be provided.

The court disagreed and held outright that an accommodation is not reasonable under the ADA if the accommodation would violate a regulation issued by a federal agency. An accommodation is unreasonable because its illegality itself creates an “undue hardship” and the existence of a federal regulation is an affirmative defense. In both of these cases, an employer does not have to provide an accommodation that is prohibited by federal law. The reasoning for this is that employers should not be required to defend its adherence to federal regulations.

In this case, the court found that even though the FDNY provided a medical accommodation to avoid shaving in the past, that does not require the FDNY to continue offering this accommodation. The fact that no injuries occurred during the time when the accommodation was in place does not preclude the FDNY from now enforcing the OSHA regulation.

The firefighters’ claims under Title VII for disparate impact based on race also were denied by the Court. The court determined that the FDNY established that the facial hair policy has a business necessity. Indeed, complying with federal regulation is a business necessity and a complete defense for the FDNY.

Can employers deny providing a medical accommodation if it conflicts with a federal regulation? The Bey case shows that the answer is plainly “Yes.” The ADA and Title VII cannot be used to require employers to depart from federal regulations.

Famighetti & Weinick PLLC are experienced employment law lawyers on Long Island and the New York Hudson Valley. The firm is experienced in litigating employment vaccination cases. Contact one of our employment attorneys at 631-352-0050. More information is available on our website at http://linycemploymentlaw.com.

Today’s Long Island employment blog was written by Danielle Jacobs, a Hofstra law student and F&W summer intern.