ADA not violated if federal regulation prohibits "reasonable" accommodation

The Court of Appeals has held that the reasonable accommodation provision of the Americans with Disabilities Act does not require an employer to modify its workplace policies in a manner that violates federal regulations. 

The case is Bey v. City of New York, issued on June 9. The plaintiffs are four Black firefighters who suffer from a skin condition known as Pseudofolliculitis Barbae, or PFB, which results in persistent irritation following shaving. This condition affects 45% to 85% of Black men. People with PFB deal with this condition by not shaving or keeping a light beard.

The problem was that firefighters have to wear a respirator that must seal against the firefighter's face to keep out toxic fumes. In August 2015, the FDNY offered medical accommodations with firefighters with PFB by allowing them to maintain closely cropped beards, uncut by a razor. But the federal regulations changed, and in May 2018, the FDNY determined that the new OSHA regulations prohibited the accommodation altogether, and the accommodations were revoked for the people who had previously received them. The firefighters now have to be clean-shaven, notwithstanding their PFB. Plaintiffs argue that the FDNY violated the ADA in revoking the accommodation.

The Court of Appeals finds that the FDNY did not violate the ADA because (1) the OSHA regulation prohibits any facial hair, whatever its length, and that they must be clean-shaven where a respirator seals against the skin, and (2) "[a]n 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." In sum, "an employer cannot be held liable for failing to offer an accommodation that is expressly prohibited by binding federal law."

 The authority for this holding is the Code of Federal Regulations, which states that there is no ADA violation if "another federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required" under the regulations. The Third Circuit has also issued a similar holding. The Second Circuit (Sullivan, Bianco and Raggi) also says the reasoning in Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999), mandates this result.

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