Facial Hair, Religion and Respiratory Protection

Scenario – A firefighter in recruit academy has a beard based on his religious beliefs and was expelled from the academy based on the fact he could not pass the SCBA fit test due to his facial hair. He was not provided the opportunity to attempt the fit testing process. Is this discrimination?

 The academy rule on facial hair is:

1.4 Facial Hair

All ------- personnel who wear respirators must be clean-shaven to remove facial hair that could interfere with the face-to-face piece seal area or function of the face piece whenever they wear a respirator. Employees, who have a medical condition which precludes their ability to be clean-shaven on the job, must consult with their supervisor and the Manager. They will be provided with information on shaving techniques which are less likely to cause or aggravate skin problems. If alternative shaving methods are used, the fit test may have to be repeated to determine the fit factor for the employee.

This has been a problem for men who desire to have facial hair to include full beards, moustaches, goatees and even long ‘elvis’ sideburns. There are many volunteer and some career departments who allow facial hair but generally draw the line for those line (combat) firefighters who are required to pass a respiratory FIT test for SCBA and other respiratory devices designed to prevent respiratory contamination from dust, infectious diseases or other legitimate reasons.

There are numerous cases addressing this issue of facial hair on firefighters. For example in the District of Columbia, a federal judge struck down a requirement that firefighters in the District of Columbia be clean-shaven. A group of firefighters who wear beards for religious reasons first sued in 2001 to challenge the fire department's "grooming policy." That policy was replaced with a safety policy in 2005 that held that beards are not compatible with breathing units because they make it impossible to form a tight seal around the face. The U.S. District Judge ruled that the district did not meet its burden of proof under the 1993 Religious Freedom Restoration Act to show that being clean-shaven is required to safely wear a self-contained breathing apparatus, or SCBA. This Religious Freedoms act is only applicable in the District of Columbia and not applicable in other states. The judge went on to state, "moreover, the Department has conceded that, for the vast majority of firefighter activity, a perfect seal between the face mask and the face is not required for safety." "The Department fully concedes that bearded firefighters have worn SCBA units for many years without incident."

In Potter, the district court granted summary judgment to the firefighters. Potter v. District of Columbia, Nos. 01-1189, 05- 1792, Mem. Op. at 2 (D.D.C. Sept. 28, 2007) (“2007 Mem. Op.”). As in the 2005 opinion, the district court reasoned that because “the Department now apparently concedes that the positive pressure in the SCBA system is adequate to protect the bearded firefighter from any leakage that may be caused by facial hair,” the case turned on whether bearded firefighters could safely wear APRs, and whether they need to do be able to do so.

In another early District of Columbia case, an appellate court overturned the termination of a D.C. firefighter who refused to remove a handlebar mustache and beard. Management could not ban beards but could require them to be short and neatly trimmed. Kennedy v. Dist. of Columbia, 65 FEP Cases (BNA) 1615, 654 A.2d 847 (D.C. App. 1994).

There are two landmark cases which arose in the Philadelphia Fire Department in the early 1970’s and in both cases, the firefighters lost. In one of the trials, the named plaintiff disputing that hair burns gave a personal demonstration. Unfortunately, his hair caught on fire because he forgot that he used hairspray to fashion his appearance.  In 2005, a judge in Philadelphia ruled that a firefighter could not wear a beard on the job, even though his Muslim faith calls for it. The Philadelphia controversy continues to this day and the ruling against beards still holds true

There are several regulatory agencies who have weighed in on this topic specifically related to the fit testing requirements for those who need to wear respiratory protection.

One is Occupational Safety and Health Administration (OSHA) and under OSHA 1910.134(g)(1) states:

• Facepiece seal protection.
• 1910.134(g)(1)(i)
  • The employer shall not permit respirators with tight-fitting face pieces to be worn by employees who have:
• 1910.134(g)(1)(i)(A)
  • Facial hair that comes between the sealing surface of the face piece and the face or that interferes with valve function; or
• 1910.134(g)(1)(i)(B)
  • Any condition that interferes with the face-to-facepiece seal or valve function.
• 1910.134(g)(1)(ii)
  • If an employee wears corrective glasses or goggles or other personal protective equipment, the employer shall ensure that such equipment is worn in a manner that does not interfere with the seal of the facepiece to the face of the user.
• 1910.134(g)(1)(iii)
  • For all tight-fitting respirators, the employer shall ensure that employees perform a user seal check each time they put on the respirator using the procedures in Appendix B-1 or procedures recommended by the respirator manufacturer that the employer demonstrates are as effective as those in Appendix B-1 of this section.

 An OSHA clarifying opinion was obtained by an individual fire department in North Carolina on the OSHA rule related to the fit standard. The opinion states, “The Respiratory Protection standard specifically provides that firefighters entering an immediately dangerous to life or health (IDLH) atmosphere must wear a self-contained breathing apparatus (SCBA).  The section of the respirator standard that applies, 29 CFR 1910.134(g)(1)(i)(A), requires employers to prohibit respirators with tight-fitting facepieces to be worn by employees who have facial hair that comes between the sealing surface of the facepiece and the face.  This regulation does not ban facial hair on respirator users, per se.  However, when a respirator must be worn to protect employees from airborne contaminants, it has to fit correctly, and this will require the wearer's face to be clean-shaven where the respirator seals against it.”

As we are aware, the Respiratory Protection standard specifically provides that firefighters entering an immediately dangerous to life or health (IDLH) atmosphere must wear a self-contained breathing apparatus (SCBA).  It should be emphasized that all respirators must be properly fitted, regardless of which type is worn or whether the wearer has facial hair.  Positive pressure-type respirators can have leakage paths that can cause aspiration of the outside atmosphere.  With SCBAs, high leakage will markedly reduce the service life of the air cylinder.  In addition, research has demonstrated that even modest facial hair growth can have a significant adverse impact on the protection of a positive-pressure system.

Another regulatory entity, the American National Standards Institute (ANSI) is the nation’s leading body on the subject of safety standards. ANSI Standard # Z88.5(7.5) and its predecessor provided that: “Devices shall not be worn when physical conditions prevent a good face seal. Such conditions are a growth of beard, sideburns, unusual facial contours, a skull cap that projects under the face piece.”

Under NFPA 1404 A.6.6.2(7), the guideline followed by many fire departments incorporates the following provisions:

• Facepiece seal capability of SCBA for each member qualified to use a SCBA shall be verified by qualitative fit testing on an annual basis and any time that new types of SCBA are issued. Each new member shall be tested before being permitted to use a SCBA in a hazardous atmosphere. Only members with a properly fitting facepiece shall be permitted by the fire department to function in a hazardous atmosphere with a SCBA.

• Beards or facial hair that interferes with the facepiece seal shall be prohibited for members required to use respiratory protection equipment. If eyeglasses are worn, the member shall use frames that do not pass through the seal area of the facepiece.

There are other public safety court cases involving both police and fire with the restrictions on facial hair if there is a safety nexus for the employee.  Here are some additional court cases.

• Citing the Pennsylvania Religious Freedom Protection Act of 2002, a Philadelphia trial court enjoined the city’s fire dept. from disciplining a Muslim firefighter who refused to shave his beard. DeVeaux v. City of Philadelphia, Docket #2005-3103, Control #021818, 2005 Phila. Ct. Com. Pl. Lexis 331 (Cm.Pls. Phila. Co. 2005).

• The Fourth Circuit revived a suit brought by a Rastafarian corrections officer who was repeatedly disciplined for wearing deadlocks. Booth v. Maryland Dept. of Corr. Serv., 02-1657, 2003 U.S. App. Lexis 8156 (4th Cir. 2003).

• The Third Circuit struck down a NJ police dept’s no-beards rule in a suit brought by Muslim officers. F.O.P. L-12 v. City of Newark, #97-5542, 170 F.3d 359, 1999 U.S. App. Lexis 3338, 79 FEP Cases (BNA) 323 (3rd Cir. 1999); cert. den., 1999. Apparently there was no safety nexus between the beards and their employment requirements.

 Closing - Needless to say firefighters depend on clean air to breath in toxic atmospheres. There is a nexus between the need for respiratory protections and religious freedoms but does it rise to a violation of a firefighters religious rights? When you evaluate the existing standards, organizational policies, regulatory entity rules and guidelines and numerous court cases, it would be incumbent on the fire agency to allow this firefighter to at least try to establish a seal for the FIT testing. If the candidate or employee fails then the organization has to evaluate that failure based on their standard.

Court’s have been reluctant to interfere with the right of the employer to establish policy and set safety standards. However, fire departments should not make the decision by “merely looking” at the firefighter and making the determination that he would fail the FIT testing even thought case law has been generally favoring the employer’s right to determine “safety policies” in spite of the religious beliefs of the employees.

 Endnotes:

1. Black v. Rizzo, #72-1781, 360 F.Supp. 648 (E.D. Pa. 1973)

2. Michini v. Rizzo, #73-1995, 379 F.Supp. 837 (E.D. Pa. 1974).

John K. Murphy JD, MS. PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a deputy fire chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a NFA Instructor, distant learning instructor at the University of Florida Fire and Emergency Service program, frequent presenter at FDIC, legal contributor to Fire Engineering Magazine, curator of Fire Engineering Policy Bank, participant in Fire Service Court Blog Radio and a national speaker on fire service legal issues.