Temporary Job Requirements

LindaS

In our facility (unionized) we have what is called a "Grade 1 Operator". Employees in this position, while they have a "home" department, can be transferred throughout the facility as needed using seniority (the lowest senior person gets transferred first).

We have one department that is very unpopular, especially in the summer months, due to the heat that is emitted from the machines.

I have one employee who claimed that some of the chemicals used in the department make him dizzy, lightheaded and nauseous. The MSDS sheets do not require the use of any special PPE and we make sure the area is well ventilated.

We sent him to a physician to be examined and, while he did not find anything physically wrong with him, recommended that he not work in that area based on the EE's statements. Because of the seniority issue (he is toward the bottom), we decided to "play it safe" and have him fit tested for a respirator so that he would be able to go into that department and not be exposed to the fumes. Well the EE passed the PFT test fine but we could not get a good fit test due to the fact that the EE has a beard and the respirator does not get a good seal. The EE refuses to shave as well.

So now we are in a situation that this EE does not get transferred into that department based solely on his statements to a physician and he refuses to take the steps necessary to allow him to be transferred thus causing problems with other, more senior employees.

I'm looking for some advice on how to handle this unique situation.

Thanks.

Don D

I am afraid that you have been successfully painted into the proverbial corner by the employee. You are right that a beard will defeat the seal required of the respirator mask. He has his doctor on his side and the union will back him as well if you try to discipline him. You can't force him to shave since the respirator mask was not a part of his job description when he was hired and it is not his primary job and he would likely claim religious intolerance, anyway, if you pursued the razor angle. An arbitrator would no doubt side with him too.

If he is a problem otherwise, I would certainly lie awake several nights deciding some discreetly creative approaches to hastening his departure (This can actually be fun on a sleepless night).

Going forward, you can look for the line to form quickly. Others will follow his lead and you will have at least half of the labor grade 1 people using the same ploy. The only thing I see that you might do is find a way to evacuate the smell caused by the chemicals and provide some air conditioning in that area.

ritaanz

Let's see, Grade 1 Operator goes to whatever department has a need. Sounds like the "hot" department is the one that usually has the opening. PPE are not required. But this individual claims that the fumes make him dizzy, etc. You provide a respirator and training. Due to his beard, it doesn't fit tight.

This gentleman has no choice. He shaves. You cannot let him work without the respirator. Your primary concern is the safety of your employees. Since you have a union (lucky you) you are required to follow the contract. If you deviate now, you will have mayhem and chaos from the more senior employees. The union should back you up.

awilliams

Why am I not surprised that this individual is from Wisconsin? (I'm from St. Germain and probably know one of his bearded cousins.) I hate to do this so close to Christmas, but I am going to have to disagree with Don. Follow your union contract and seniority schedule and assign this guy to the fume room as he should be. He can then elect to wear the headgear or not. If he genuinely has an issue with the fumes, he should elect to shave and wear the headgear. Your other approach could be to send him to a doctor on your dime and get a second opinion. If the employee refuses to shave, wear the gear, or work in that area follow your disciplinary policy for insubordination. You'll find out at that point if he is claiming to have the beard for religious purposes. If so, show him the caselaw which says that if it is a BFOQ to have the headgear he must shave, regardless of any religious objections. Your buddies in the 8th circuit just decided a similar case in the employer's favor - it was facial piercings instead of jewelry, but the premise is the same. Cloutier v. Costco, 2004 WL 2731496.


Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 12-22-04 AT 11:01AM (CST)[/font][br][br]I agree with Anne. Don understands the union environment better than I do, so he may be correct about the reality. The way I see it, he goes over there as necessary and if he needs the respirator, he shaves and uses it. I think the employee has painted himself in the corner.

edit
I think you handled the situation perfectly.