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Employer Not Required to Accommodate Employee's Inability to Wear Safety Shoes

    Client Alerts
  • September 24, 2018

In addition to OSHA rules, many safety-sensitive businesses use ANSI or other standards organizations’ guidelines to develop their safety programs. Earlier this month, the Eighth Circuit Court of Appeals affirmed dismissal of a claim brought under the Americans with Disabilities Act against an employer that terminated an employee who was unable to use personal protective equipment (PPE) called for under an ASTM standard.

In Sharbono v. Northern States Power Co., the plaintiff had several of his toes amputated, and as a result, could not wear steel-toed work boots. He requested an accommodation to be allowed to return to his lineman position without the need to wear the boots. After an accommodation process designed to consider alternatives, the employer terminated the plaintiff based on his inability to meet the PPE requirement. He sued, claiming failure of the employer to provide a reasonable accommodation under the ADA.

The Eighth Circuit affirmed dismissal of the claim. The employer cited ASTM F2413 as the basis for its requirement that employees in the plaintiff’s position wear approved steel-toed footwear. The company attempted to locate approved boots suitable for the plaintiff and also searched available alternative positions when the footwear search proved fruitless. Even though federal OSHA rules do not require use of the ASTM-certified footwear, the employer was justified in relying on this standard. The defendant was not required to explore whether alternative boots would have been as effective in addressing the noted safety hazard.

OSHA sometimes uses these outside safety standards as the basis for citations brought under the General Duty Clause. In this circumstance, the employer was able to use the same safety standards as the basis for its inability to provide a requested ADA accommodation.