Due to the nature of the business and respiratory hazards, the company requires employees to wear a respirator. Employees’ respirators must fit properly and we have employees undergo specially designed “fit tests.” The respirator cannot fit properly if the employee has any great amount of facial hair such as a beard. Simply put, facial hair may interfere with the fit and function of a respirator. Thus, we have a policy stating that the company requires that all facial hair be removed for safety reasons, in particular for the fitting of this particular personal protective equipment.
However, we hired an operator who for religious reasons could not shave. The company provided the employee with a special respirator with a mast. Now other operators are starting to grow beards and saying either its for regilious reasons. Do we have a legal right to ask those with beards to prove that it is for religious reasons, otherwise they have to shave to be able to wear a normal respirator when required?
As we can see by the above example, employees requesting a religious accommodation can sometimes conflict with safety issues.
So, what does an employer do when it accommodates one employee based on the ground of religious beliefs (for instance, tailoring special personal protective equipment to the employee so he can keep facial hair for religious reasons), but then other employees follow suit and try to grow beards and claim it is for religious reasons as well?
One may wonder if the employer has the right to even ask employees suddenly growing beards to prove they are doing so for religious reasons. One may think that it is appropriate for the employer to ask these non-religious employees to comply with the company policy and shave. In this situation, if an employee had a religious request to grow or maintain facial hair, can the employer deny the request because of safety procedures?
What does the law say?
Human rights legislation across Canada stipulates that “religion” (some jurisdictions use creed, and some use religious beliefs) includes the practices, beliefs and observances that are part of a faith or religion, and is protected from discrimination in employment and must be accommodated to the point of undue hardship. In general, the duty arises when a person’s religious beliefs conflict with a requirement, qualification or practice. The Code imposes a duty to accommodate based on the needs of the group of which the person making the request is a member. Accommodation may modify a rule or make an exception to all or part of it for the person requesting accommodation.
Furthermore, the Supreme Court of Canada has clarified that “religion” means freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
“Undue hardship” means significant difficulty or expense and focuses on resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive or those that would place extra burdens on others, violate other laws or fundamentally alter the nature or operation of the business. An employer must assess, on a case by case basis, whether a particular reasonable accommodation would cause undue hardship.
It is the employer’s responsibility as stated under health and safety legislation, to see that employees are protected from hazards on the job. This includes ensuring that the personal protective equipment (i.e., respirators) to protect employees from identified hazards (i.e., airborne contaminants) in the workplace, will consistently provide protection. This means they need to ensure the personal protective equipment fits and is used properly and consistently.
As a result, employers do have the right to require certain bone fide occupational requirements in order to obtain a satisfactory outcome from the personal protective equipment to protect employees from hazards and ensure a healthy and safe workplace. However, the wording used in such a policy is important. Therefore, it is important to ensure that any restrictions and/or requirements are addressed only to those workers who will actually have a need to wear a personal protective equipment in a routine or emergency situation.
To be considered a bone fide occupational requirement:
- You must adopt the policy or practice to serve a legitimate, non-discriminatory purpose;
- You must have a sincere and good faith belief that it was necessary to adopt the policy to achieve that purpose; and
- The policy must be “reasonably necessary” to accomplish the purpose, for which no less discriminatory alternatives are available.
As a result, protecting workers is recognized as a legitimate, non-discriminatory employer action. So the key to justifying a personal protective equipment or bone fide restriction or requirement policy, is to demonstrate that it’s reasonably necessary to ensure safety
Applying the above legal principles to the case in point
A no-beard requirement could be upheld as a valid safety rule, since facial hair interferes with a good fit on respirators and could intefere with an employer’s obligation under health and safety legislation. However, before implementing such a restriction or requirement in policy, employers must first consult their health and safety legislation and regulations for general and industry specific requirements.
Next they should conduct a risk assessment and identify if there is a hazard (toxic gases, chemicals and other hazardous substances) on the job that requires the use of a respirator as a personal protective equipment to protect employees from exposure that could kill them or make them seriously ill.
They should ensure that facial hair restrictions are addressed only to those workers who will actually have a need to wear a personal protective equipment such as a respirator in a routine or emergency situation.
There are various types of respirators; facial hair is only a problem when using a tight-fitting respirator. If employers can use another type of respirator than a tight-fitting respirator and still protect employees and comply with the law, employers should consider whether they can safely allow workers to use a respirator that doesn’t require a face seal or tight-fit and thus, can be used by workers with beards.
Rules regarding facial hair policy should be prominently posted and communicated, as well as being clearly explained during annual training and to all newly hired employees.
When an employee request an accommodation because of religion or other prohibited ground under human rights legislation, accommodation that should be considered should allow the employee to keep his job and his beard. Think of, and make a real effort to find reasonable alternatives.
If a reasonable alternative cannot be found, violating health and safety legislation to accommodate an employee is not an option and can result in an undue hardship.
An employee’s religious beliefs may conflict with the organization’s policies, procedures, job duties, processes or methods of operation. An organization is required to consider modifications or exemptions from performing duties or engaging in certain operations or using alternative methods to protect the health and safety of workers among others that are not reasonable. The organization is not required to modify to the point of changing the nature of the job, excusing one from basic performance or behaviour standards, putting employees health and safety at risk, or violating another law.
There is a limit on the extent to which an employer must go to accommodate the religious beliefs of workers, where these are in conflict with safety-related requirements.
Following sound health and safety practices should be an implied term of every employee’s employment. When that does not happen, employees need to be taken to task by following a progressive discipline approach to correct the problem.
If an employee refuses to comply with the bona fide occupational requirement and health and safety policies and procedures, you should already have in place a clearly written and communicated disciplinary policy that allows you to prevent unacceptable behaviour by imposing sanctions.
Yosie Saint-Cyr and Christina Catenacci
First Reference Human Resources and Compliance Editors
Latest posts by Yosie Saint-Cyr, LL.B. Managing Editor (see all)
- Amid COVID-19, take time on April 28 to mark Day of Mourning - April 24, 2020
- Three popular articles this week on HRinfodesk - April 23, 2020
- CEWS (75 percent wage subsidy) available Monday, April 27, 2020 - April 21, 2020