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Clash of the titans

By Amanda Silliker
| www.cos-mag.com

Kulbir Singh is a highly trained engineer from India. He has lived in Canada since 1999 and his bachelor of engineering as well as his master’s in personnel management and industrial relations have passed Canadian equivalency. He has several safety “tickets” under his belt including safety orientation from the Oil Sands Safety Association, the Construction Safety Training System from the Alberta Construction Safety Association and forklift training from Hertz Equipment Rental. But when he tried to get a job in the oil sands in Fort McMurray, Alta., he was unable to find employment due to his inability to wear a hard hat. Singh is a practising Sikh and one of the requirements of the faith is the wearing of a turban.

“I gathered that the hard hat is going to be an issue wherever I go for interviews,” he said. “I always asked the same question, ‘What about if I have to wear a hard hat?’ and they said ‘Yes, you will have to wear it when you go on the site.’ I felt highly discouraged and disappointed. I could see everybody else working and just myself, because of my resolve not to wear a hard hat with my turban, I was not accepted there.”

Singh wrote a letter to the OHS Division of the Alberta government about his inability to find suitable work due to his religious beliefs. An MP responded to him explaining it is the employer’s duty to keep workers safe and suggesting Singh wear a smaller turban underneath his hard hat. Unfortunately, wearing a hat on top of a turban is against the Sikh religion and not something Singh is willing to do.

There are half-a-million Sikhs in Canada, many of whom are experiencing similar problems as Singh. Some have chosen to go against their religion and wear the turban only in their personal lives, replacing it with a hard hat while at work, for the sake of their own jobs. This issue is a perfect example of human rights clashing with occupational health and safety, which regularly occurs in a variety of different ways in workplaces all across Canada.

Hard hats vs. turbans

In March, the United Kingdom passed an amendment to the Employment Act so that turban-wearing Sikhs in any industry (except for specific roles in the armed forces and emergency response situations) will be exempt from the need to wear head protection. Previously, this option was available for workers in the construction industry, which has been allowed since April 2014. There are three-quarters of a million Sikh members in the U.K.

One reason for this change was members of the Sikh community had faced disciplinary hearings and dismissals for refusing to wear head protection and others were unable to follow their chosen professions because of the insistence of the need to wear head protection, according to the U.K.’s Health and Safety Executive.

This legislative change is something Stephen Garvey, the leader of the Democratic Advancement Party of Canada, would like to see implemented in this country.

“We support safety but at the same time we support freedom of religious beliefs and freedom of expression. I don’t think it’s right for a bureaucrat or a politician to tell these people to go against their religion and their culture,” says Garvey, who is based in Calgary. “Safety is important but who is a secular person, for example, to say it’s more important than cultural and religious belief? By not allowing them to wear it, we’re helping to erode their culture and identity.”

Singh would also like to see this legislation brought to Canada. Without the inclusion of a guideline on Sikh religion in the legislation, the safety aspects override the Sikh viewpoint, he says. 

The U.K. ammendment also extends limited liability provisions of the exemption to employers. This means if something happens to a Sikh who chose to wear his turban rather than hard hat, the employer cannot be liable.

Another consideration to implementing this legislation in Canada is that turban-wearing Sikhs would need to take care of their own health-care costs related to any injuries from wearing a turban rather than a hard hat, says Garvey. And these stipulations would be well received by the Sikh community, says Singh.

Ultimately, the legislation needs to be designed so the Sikh has free choice.

“Sikhs themselves (need to) decide what risks they are willing to take on. If it’s extremely high risk, I still think we need to come back to the Sikh person and let them decide, if we want to be consistent — but make it perfectly clear the risk,” says Garvey.

Respirators vs. beards

In July 2003, Devinder Wadhwa was hired as an electrician on an expansion project north of Fort McMurray, Alta., run by Syncrude. On his first day of orientation, Wadhwa was asked to shave because there was a clean-shaven policy in effect for the work area. As a Sikh man, it is against Wadhwa’s religion to shave his beard, but when he told this to his supervisor, the supervisor said “No shave, no job.”

Wadhwa asked for accommodation and offered in writing to buy himself a Survivair Puma self-contained breathing apparatus (SCBA) respirator. While this hood-style respirator is certified by NIOSH for entry into immediately dangerous to life or health (IDLH) environments, it cannot be used in the presence of high heat or direct flame and it does not have a flash fire protection rating.

Wadhwa was told he could not be accommodated and was terminated. He filed a complaint with the Alberta Human Rights and Citizenship Commission (now called the Alberta Human Rights Commission) on the grounds that he was discriminated against on the basis of religion. The situation was eventually resolved between all parties behind closed doors.

The situation prompted Syncrude and partners within the industry to look at what respiratory protection was available for workers with beards in the oil and gas industry. Specifically, the group set out to determine whether there were any available devices to be used for protection in IDLH work environments and where flash fire is a risk.

After months of research, the group issued a report in September 2014 that concluded there was no suitable respiratory protection available in North America. While powered air-purifying respirators (PAPR) are available for workers with beards, which seal at the neck and do not require fit testing, these respirators cannot be used in oxygen-deficient atmospheres or where contaminants in the atmosphere are at or greater than the IDLH values.

The group did, however, find one piece of equipment it was quite excited about: Cam Lock’s FAST-cowl respirator. The FAST-cowl is currently used the Middle East and Central Asia. Shell is using it in its operations in Qatar.

It is quick donning, provides automatic mask tensioning and is fire resistant and H2S resistant, according to the manufacturer.

“You pull it out of the escape bag, a head harness automatically opens up the cowl, you put the cowl over the head, you then offer the face mask portion up to the face. Once it detects the seal, the head harness contracts and it can be easily and reliably donned in five to 10 seconds max,” says Bob Acey, business director for Cam Lock in the U.K. It also does not require a fit test.

On behalf of the industrial study group sponsored by the OHS Division of the Alberta government, Proquares conducted a simulated workplace protection factor (SWPF) test to see just how well the FAST-cowl 20 minute emergency escape breathing apparatus (EEBA) worked with bearded workers. Eighty-five test subjects were involved, including women and clean-shaven men, men with three days’ facial hair growth and those with full beards. Twenty males with full beards participated, including eight Sikhs and eight Muslims. The longest beard was 295 millimetres long. The subjects were required to complete a variety of exercises including climbing stairs, descending a ramp and crawling on hands and knees in a high particulate area.

The SWPF study concluded that regardless of facial hair, there was no impact on nominal duration of the FAST-cowl as all 85 test subjects recorded wearing durations of between 22 and 25 minutes. The SWPF was 493,000 for full beards. This compares to the assigned protection factor (APF) of 2,000 for full face mask, tight-fitting, air-supplied respirators as per the European EN529 standard.

“This evidence clearly endorses the safety of all workers to be permitted to enter and work in high toxic ‘red zone’ operational areas,” says John Swatton, senior vice-president of Inspired Technologies International, the global commercial corporation for Cam Lock products and services.

The eight Sikhs in the study wore small turbans during the testing. Sikhs have four sizes of turbans and they wore the smallest of the four, often used for sports. They were able to don the FAST-cowl without difficulty in these small sized turbans, says Swatton.

In July, the Alberta OHS Policy and Program Development Branch approved the FAST-cowl for use in Alberta for workers with facial hair, including full beards. It approved the equipment for use as a self-contained breathing apparatus and also for emergency response personnel responding to an incident.

The product is potentially a “game changer” for the industry, says Paul Verma, a member of the industrial hygiene committee for the Canadian Association of Petroleum Producers (CAPP) and a senior industrial hygienist at Shell in Calgary. 

“(The oil sands) have probably the most diverse workforce I have ever been around and (there are) skill shortages in the oil patch, so anything where you are being inclusive and being able to widen the skill pool for any worker there, you don’t want to be turning people away who are qualified to work, so this is a tool, potentially, that allows us to hire anyone,” says Verma.

The FAST-cowl may be a better standard as it offers a higher level of protection, he says. The respirator is also able to accommodate people with dental appliances, lack of teeth, scars, deformities or other facial topography characteristics.

BFORs vs. human rights

The hard hat versus turban debate has been ongoing for quite some time. The seminal case on this is Canadian National Railway Co. v. Bhinder from 1985.  Bhinder was a Sikh man who wore a turban and CNR fired him for refusing to wear a hard hat. The Supreme Court of Canada ruled in favour of CNR, saying the hard hat was a bone fide occupational requirement (BFOR).

Since then, the Supreme Court of Canada has established a test for determining if a workplace policy or rule is a bone fide occupational requirement. This three-step test was set out in the Meiorin case in 1999.

A safety-specific example would be the following:

• Step 1: Was the rule about hard hats or respiratory protection adopted for a purpose that is rationally connected to the job (safety)?

• Step 2: Was the rule adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose (safety)?

• Step 3: Was the standard reasonably necessary to accomplish that legitimate purpose? Can the employer accommodate individual employees without imposing undue hardship upon the employer?

“An employer usually can’t just say ‘It’s justified for safety reasons.’ All aspects of the policy must be carefully considered,” says Janice Ashcroft, senior legal counsel at the Alberta Human Rights Commission in Calgary.

If a worker suspects he has been discriminated against based on his religious beliefs, he can submit a complaint to his provincial human rights commission or the Canadian Human Rights Commission for federally regulated companies.

“For example, the employer has a workplace policy that says no hard hats, no loose-fitting clothing, such as headscarves, can be worn on the job. On its face, this is a seemingly neutral workplace rule, which applies to everybody and doesn’t seem to indicate any intent to discriminate against employees because of religious beliefs; however, the workplace policy would likely adversely affect Sikhs who wear turbans or the Muslims or Mennonite women who wear hijab or headscarves,” says Ashcroft.

If the policy is discriminatory based on religious beliefs, this would give rise to the employer’s duty to accommodate. The employer must then find another way to do the job that would lessen the adverse impact, relocate the worker or find other suitable accommodation.

The employer’s duty to accommodate is to the point of undue hardship, such as intolerable financial costs or serious disruption to business. Undue hardship can be demonstrated by the employer through scientific evidence, risk analysis, statistics and financial costs, says Ashcroft.

“But it should always be remembered that until a decision-maker has examined and decided that it has met those three steps of the Meiorin test, there’s always a risk that someone will file a complaint and it will be subject to a full examination at a tribunal or through the courts at appeal,” says Ashcroft. “I know it can be difficult at times for employers to know where they stand on all their workplace policies, but I would always emphasize to do your due diligence on it and be able to give information and evidence as to why and how the policy was developed.”

Blanket policies vs. individual context

The Alberta study group’s report calls on employers to revisit blanket clean-shaven policies. In some industries, the policies may be more prescriptive than necessary to meet the legislative requirements. There should only be “exceptional circumstances” under which workers are required to be clean shaven due to a foreseeable hazard, the report says. In most cases, elimination of hazards, along with engineering and administrative controls, should remove the exposure without having to resort to personal protective equipment.

In a media report in 2006, Wadhwa said the clean-shaven policies at other companies has kept him from some of the biggest job opportunities for electricians in Alberta. And Singh was kept from a bus driver position because he was not willing to wear a hard hat.

“Sometimes blanket restrictions — everyone needs to wear hard hats everywhere — it might not apply to the secretary or the particular job that person does. That’s why it’s always important to look at the very individual context that you’re looking at,” says Ashcroft.

In the oil and gas industry, there are a lot of blanket rules, says Verma.

“We tend to err on the side of safety,” he says.

 But progress is being made as some operators have reviewed this and narrowed down where it is really required and where it is not.

“For example, up at our mine, we have a process area where we have hydrocarbons where clean-shaven policies are in place, but the rest of the operation is not,” says Verma. “That’s based on the risk or hazard.”

In 2005, Sikh truck drivers filed a human rights complaint against CP Rail for a rule that required them to wear hard hats instead of turbans. The requirement prevented them from driving into two Toronto terminals without protective headwear. More than 500 drivers challenged the rule. After careful consideration and a full safety review, CP determined it was safe to remove the requirement for the drivers.

From Singh’s perspective, he has not yet had any luck finding engineering work that would exempt him from wearing a hard hat. Any kind of heavy-duty equipment operation, such as forklifts, crane and bulldozers, require the use of hard hats, as do jobs he has looked at in government departments (such as Parks Canada) and municipalities.

He is now running a startup software and web development company in Calgary and Winnipeg called Inforange IT. While the company is in its first year of business and it is a “very engaging time,” Singh still hopes to one day get back into the field. He is hopeful for change going forward so himself and his fellow Sikhs can work in their desired professions.

“Without an awareness about this Sikh tradition and its acceptance at the grassroots level within the industry, it is almost impossible to continue looking at engineering as a viable field for me,” he says. “I hope that one day our government will mandate exemptions for Sikhs regarding hard hats… Otherwise I can’t be working in the Canadian industry with my engineering degree and a turban exclusivity resolve.”

This article originally appeared in the August/September 2015 issue of COS.

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