ADA Reasonable Accommodations Need Not Violate the Law

Confirming perhaps an obvious point, the U.S. Court of Appeals for the Second Circuit held that “a binding federal regulation presents a complete defense to an ADA [American with Disabilities Act] failure-to-accommodate claim.”

In Bey v. City of New York, Black firefighters with a skin condition that causes pain and scarring with shaving sought an accommodation to the employer’s grooming policy, requiring firefighters to be clean-shaven in areas where a respirator “seals” against the skin. The employer refused the accommodation request, citing a binding Occupational Safety and Health Act regulation prohibiting any facial hair between the sealing surface of the mask and the face in order to ensure the proper seal. The employees sued for failure to accommodate under the ADA.

The Second Circuit observed that “[a]t the heart of this appeal is a question about the interplay between federal safety regulations and the ADA’s requirement that employers must offer reasonable accommodations to employees with disabilities.” The Second Circuit found the regulation to be unambiguous in prohibiting any facial hair where the respirator seals against the face. Thus, according to the Second Circuit, “An accommodation is not reasonable within the meaning of the ADA if it is specifically prohibited by a binding safety regulation promulgated by a federal agency.” This is the case even if the employer had previously permitted the requested accommodation, as it had done here.