Portable Sanitation Association International

Association Insight Nov 27

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WEEKLY EDITION NOVEMBER 27, 2019 PAGE 3 CONTINUED ON PAGE 9 PPE: W ha t to Do W hen the Tea m Sa ys "Nope" B y Kar le e n K o s, P S AI E xe cu t ive Dir e ct o r… co n tin u e d f r om p ag e 2 Sometimes workers refuse to wear PPE for less obvious reasons. Ian Samson, European training specialist at DuPont Personal Protection, recalls that some shipyard workers in the 1960s and 1970s refused to wear protective clothing in particular colors due to local religious and sports team rivalries. Are there any exceptions? If a worker is refusing to put on PPE, find out why. Is the gear uncomfortable to wear or too heavy or restricting in some way? In these cases, head off the problem with respectful communication, effective consultation, better training, and reasonable adjustments. Refusals stemming from ethical or religious beliefs may be harder to resolve. The Occupational Safety and Health Administration (OSHA) does not typically exempt businesses from citations when their workers fail to wear PPE in the workplace due to personal religious convictions. The relevant federal statute pertaining to religious accommodations is in the Religious Freedom Restoration Act (RFRA). RFRA prohibits the Federal Government from substantially burdening a person's exercise of religion unless it "…demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." This typically means that if PPE is required for safety, the employee has to wear it unless safety can be achieved some other way. If not, the employer has to show that workers are aware of and have chosen to accept the risks involved. For example, OSHA Instruction STD 01-05-005 exempts Amish and Sikh workers from wearing hard hats. Though OSHA staff cannot issue citations for this safety breach, employers must be able to prove that they instructed the employees about overhead hazards as required by 29 CFR 1926.21(b)(2). The US Equal Employment Opportunity Commission has held under Title VII of the Civil Rights Act of 1964 that employees cannot be discriminated against for "sincerely held religious beliefs," and that employers must make accommodations if possible. In other words, if safety cannot be assured without the hard hat or shaving, the employer must instruct employees to shave and wear the hard hat. Employers cannot avoid OSHA compliance by having their employee sign a waiver. Never ask an employee to sign a waiver for refusing to wear PPE. Not only will this not release you from obligation, it actually creates a record of your allowing the employee to do something dangerous.

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