How would you handle this situation? Raj works on a construction site where all personnel must wear hardhats. Raj cares about safety. But donning a hardhat would force him to remove the turban his religion requires him to wear at all times. So he refuses to obey the hardhat policy on religious grounds and exposes himself to serious danger.
THE LEGAL DILEMMA
Refusal to wear required safety equipment on religious grounds force employers to contend with 2 seemingly contradictory legal requirements:
The OHS laws require the use of personal protective equipment (PPE) such as hardhats, face and eye protection and respirators necessary to protect workers from the hazards of the work they perform. The OHS laws actually place the onus on employers to ensure that appropriate PPE is used. Thus, the refusal of a worker to use required PPE exposes employers to the risk of liability. So it’s not surprising that the defiance of a safety policy is generally considered legitimate grounds for discipline, possibly including termination.
The Human Rights laws make it illegal for employers to discriminate against workers because of their religion. Part of an employer’s duty to avoid religious discrimination is to make reasonable accommodations in work policies and practices. This includes policies that are neutral on the surface but have the effect of interfering with a worker’s religion. Thus, for example, a policy requiring employees to work on Saturdays isn’t consistent with Jewish beliefs that individuals refrain from working on the Sabbath. So the employer might have to exempt employees who keep the Sabbath from the policy to accommodate their religious rights.
Unfortunately, the duty to ensure use of PPE and the duty to accommodate religious preferences can collide where an employee wants out of a PPE requirement as a religious accommodation. That’s what’s going on in the situation with Raj. Letting Raj work without PPE would make the employer liable for an OHS violation; refusing to let him out of the PPE requirement might result in liability for failing to accommodate his religion.
Resolving the OHS/Religious Accommodation Dilemma
Luckily, this dilemma comes with an escape hatch. But you need to understand some legal rules to crawl through it. The key thing to recognize is that under human rights laws, policies and practices that seem to be discriminatory might still be okay if they’re what’s called a “bona fide occupational requirement” (BFOR). The BFOR essentially recognizes that there are occasions where equal treatment must yield to legitimate business purposes. Example: Not hiring the visually impaired to drive a taxi would be justifiable as a BFOR.
Raj’s employer would have to prove that holding him to the mandatory hardhat rule is a BFOR. And that wouldn’t be easy. To establish a BFOR, Raj’s employer would have to prove 3 things:
Protecting safety is recognized as a legitimate, non-discriminatory interest. And as long as Raj’s employer had no hidden agenda or ulterior motive for adopting it, the second prong wouldn’t pose too much of an obstacle. So the key to justifying making Raj follow the hardhat policy would be to demonstrate that it’s reasonably necessary to ensure safety and there are no other reasonable options.
How Courts Have Ruled on the Issue
The good news for Raj’s employer is that there are court cases that provide guidance on how employers should handle this situation. One of the key rulings is a 1985 Supreme Court of Canada case in which a railway company fired a Sikh electrician for refusing to take off his turban and wear a hardhat for religious reasons a la Raj. Although the hardhat rule had the effect of treating the electrician less favourably because of his religion, the Court ruled that it was a BFOR and upheld the termination of the electrician for not obeying it [Canadian National Railway Co. v. Bhinder,  2 S.C.J. No. 75, Dec. 17, 1985].
The Bhinder case is still valid. But the law has changed since it came down. Today, employers are no longer allowed to force a safety or other policy down a worker’s throat just because it’s a BFOR. Later cases have clarified that even if a policy is a BFOR, employers must still try to accommodate the worker’s religion by:
Accommodations must be reasonable and you don’t have to make them if they would impose “undue hardship.” Key point: Accommodations in safety policies that would endanger the health and safety of other workers or members of the public are generally considered a form of undue hardship.
Example: A paper mill was allowed to insist that a Sikh worker shave his beard to effect an airtight fit of his face shield and respirator. Shaving violated the worker’s religion. But any leaks in his equipment might have caused the worker to pass out and thus render him incapable of carrying out the key role he was expected to play in the company’s emergency response plan. If that happened, everybody in the workplace would be in danger. So the BC Human Rights Tribunal ruled that exempting him from the shaving policy would impose an undue hardship on the mill [Pannu v. Skeena Cellulose Inc.,  B.C.H.R.T.D. No. 56].
The argument could be made that accommodations wouldn’t constitute undue hardship if the only person whose safety they affect is the refusing worker himself. That argument was tried and rejected in an Ontario case in which a Sikh man got a traffic ticket for riding a motorcycle without a helmet. He argued that the law requiring motorcyclists to wear approved helmets discriminated against him based on his religion and that by not wearing a helmet, he only endangered himself. The court disagreed, ruling that the helmet law protected not only the motorcyclist but also the interests of his family, other drivers and the public in general. The court concluded that it would be an undue hardship on the province to make an exception to the helmet law for Sikhs [R. v. Badesha,  ONCJ 94 (CanLII), March 6, 2008].
Although it’s not a workplace case, the principles of the Badesha would apply equally to workplace situations like Raj’s.
HOW TO COMPLY
Understanding the legal issues is a must for HR directors. There are also 4 practical things you can do to reconcile your OHS and religious accommodation requirements where workers refuse to don safety equipment on religious grounds.
Strategy #1: Consult Workers on PPE Rules
Remember that the first “P” in PPE stands for “personal.” Although requiring workers to use PPE might seem like just plain common sense, company rules should be developed with the input of the front line workers expected to carry them out. You should consult workers or their representatives, e.g., the workplace Joint Health and Safety Committee or a union official, before adopting or changing the PPE rules. Consultation will enable you to identify and head off potential religious conflicts and other stumbling blocks before they can fester into grievances and work refusals. If religious issues do arise, explain the safety requirements of the situation and ask for help in working out a solution that meets both the safety and religious concerns.
Example: A BC sawmill suddenly changed its hardhat rules, requiring all workers to now wear hardhats. Two long-time Sikh workers refused to comply with and were disciplined. Their discrimination lawsuit was eventually settled with the workers’ being assigned to jobs in an area that didn’t require hardhats. But the same arrangement could have been made without litigation if the sawmill had gone to the workers before adopting the rule.
Strategy #2: Eliminate Need for PPE
PPE is generally regarded as a safety measure of last resort. If possible, adopt engineering and/or work controls to eliminate the hazard completely without the need for PPE. Thus, for example, ventilating a space to remove atmospheric contaminants is much safer than requiring workers to wear respirators while in the space. Another alternative is to adopt a workplace rule banning workers from entering the space at all.
Strategy #3: Consider Alternate Types of PPE
If you can’t eliminate the hazard that the PPE protects against, consider whether a different type of PPE might provide the same protection for the worker. For example, suppose company policy requires workers to be clean-shaven so that the seal on their respirators is effective. Sikh workers might object to this policy as their religion bars shaving their beards. First, ask the workers to take a fit test using the respirators to see if their beards do interfere with a good seal. If beards are a problem with the respirator’s fit, try other types of respirators that might fit differently. Or consider the use of a gel that can be applied to the workers’ beards to create an effective seal.
Strategy #4: Ask Workers to Make Accommodations
The process of seeking accommodation should flow in both directions with workers actively participating in the search for a solution. Part of that dynamic is exploring accommodations that would allow the worker to use the required PPE without compromising his religion. For example, a WorkSafe Alberta bulletin on protective headwear and turbans suggests asking the worker to remove the bulky “overturban” and wear just the “underturban,” which is smaller and secured to the head. Wearing the underturban alone may satisfy the worker’s religious obligations and permit the use of a hardhat, the bulletin suggests. It’s at least worth considering.
As Canada’s workforce becomes more diverse and multi-cultural, HR directors need to be prepared for workers to request relief from safety equipment rules on religious grounds. How to respond to these accommodation requests is tricky. But there are 3 things we can tell you with absolute certainty:
If worst comes to worst, and there are no reasonable accommodations to be made and enforcing the safety policy is the only way to protect the worker’s health and safety, the smart move is to enforce the policy. Although it’s not 100% certain, based on the cases and guidelines, it appears likely that the law will probably support your decision. More importantly, at the end of a day, an act of religious discrimination is much easier to rectify than a fatal or serious injury.