Police force's requirement for officers to be clean shaven while wearing masks reasonable, but a permanent beard ban isn't
“At the end of the day, perfection in an employer’s policy isn’t required as long as the employer has the evidence to show they are being reasonable — and there isn’t always a single approach that is reasonable.”
So says Anne Amos-Stewart, an employment lawyer with McInnes Cooper in Moncton, N.B., after a New Brunswick arbitrator found that a police force’s requirement for officers to be clean shaven for fit-testing of respirator masks was reasonable, but insisting they be clean shaven all the time while on duty was not.
The City of Fredericton police force (FPF) prepared an administrative report on the need for personal protective equipment (PPE) for potential exposure to high potency drugs in 2018. The report indicated that with the increasing opioid epidemic in Canada, law enforcement and first responders were being exposed to potentially lethal doses of opioids on the job. It recommended that front-line police officers be equipped with half-face respirators and other PPE.
On Nov. 30, 2018, WorksafeNB — New Brunswick’s health and safety authority — inspected FPF and issued an order that where respiratory protective equipment was required, FPF should establish a written code of practice governing the care, use, and fitting of the equipment.
In April 2020, FPF adopted a Respiratory Code of Practice prohibiting the use of “any air purifying respirator when conditions prevent a good facepiece-to-face seal.” It listed examples of such circumstances, including “the growth of facial hair which will pass between the facepiece sealing area and the face.”
The code was based on a regulation under the provincial Occupational Health and Safety Act (OHSA), which required employers to comply with CSA standard Z94.4-93, which itself required employers to develop a code of practice where respirators were required. The standard required any employee “who may be required to use respiratory protective equipment” to be clean shaven as is necessary “to ensure an effective facial seal.”
Beard ban
FPF required officers in the patrol and investigation units who may have to use respirators while performing their duties to be clean shaven at all times while on duty. It exempted three police officers for medical reasons under the New Brunswick Human Rights Act and six officers in the street crime and drug units for operational requirements — it was determined that facial hair could help blend in on undercover assignments. They were accommodated with razors for circumstances where they might be required to wear a mask.
Anne Amos-Stewart
“[FPF] did not try to rigidly apply the policy to every officer — it permitted exemptions and allowed for human rights-based accommodations,” says Amos-Stewart. “An approach that allows for individual circumstances was the right way to go.”
FPF and the union had several discussions about the code of practice. The chief of police said he was comfortable with officers having facial hair such as goatees or mustaches after the fit-testing process if it didn’t impede the seal of a respirator mask.
The union grieved the Respiratory Code of Conduct, arguing that it was unilaterally implemented, wasn’t consistently enforced, was unclear and equivocal, and was unreasonable. It said that the OHSA regulation and CSA standard only required an employee to be clean shaven when wearing a tight-fitting mask, not at all times.
The union also argued that the exemption for the street crime and drug units didn’t make sense, since they were the most likely to come into contact with high potency drugs. This made the enforcement of the code inconsistent and arbitrary, the union argued.
In addition, the union said that FPF hadn’t provided objective evidence that a complete beard ban was necessary to achieve its goals and whether those goals outweighed the right of employees to groom themselves as they wish.
The arbitrator noted that the union agreed that the code was consistent with the collective agreement, employees had been informed, and no employee had been disciplined. In addition, FPF had a right to adopt the code because WorksafeNB ordered it to do so.
The arbitrator also found that the code was clear in that officers must be clean shaven where the respirators sealed to the face. The legislation, CSA standard, and Worksafe NB order also supported the argument that the requirement was established for safety reasons, the arbitrator said.
Read more: A recent City of Toronto requirement for security guards to be clean shaven for N95 facemasks resulted in the controversial removal of more than 100 Sikh guards removed from their positions.
Everyday beard ban not justified
However, the arbitrator agreed with the union that nowhere in the OHSA regulation or the CSA standard was there a requirement for an everyday beard ban. Officers should only be required to wear the respirators where they might be in the presence of dangerous substances, which did not occur on a daily basis, said the arbitrator.
The arbitrator also agreed with the union that there was no evidence that the accommodation given to the street crime and drug units — electric razors for when a mask might need to be worn — couldn’t be implemented for patrol division officers as well. This resulted in an inconsistent application of the code of practice, said the arbitrator.
Although the arbitrator disagreed with the way FPF interpreted its own policy with regard to the requirement for officers to be clean shaven on a daily basis, there was still a need for the policy itself, says Amos-Stewart.
“In not throwing out the policy, the thing that clearly persuaded the arbitrator was the objective evidence in support of the health and safety concerns at play, in terms of drug exposure concerns for police officers and the effectiveness of the policy at addressing those concerns,” she says. “There was evidence of the extensive history of the steps the employer had taken to research the health and safety concerns the policy was aimed at, and I think WorkSafeNB’s involvement in the matter definitely worked in the employer’s favour as well.”
As for human rights, the arbitrator pointed to the fact that FPF had accommodated three officers for medical reasons, so there was no evidence that FPF breached the Human Rights Act in applying the code.
Clean shaven requirement reasonable for mask-wearing only
The arbitrator determined that the use of the respirators and the requirement that officers be clean shaven where the respirator meets the face during fit-testing or when wearing it while performing their duties was reasonable and the code of practice did not violate human rights legislation. However, there was no justification for a requirement for officers to be clean shaven on a daily basis when not required to do a fit-test or to wear a mask, and FPF and the union should consult with WorksafeNB on the viability of an electric razor option for all divisions, the arbitrator said.
Amos-Stewart notes that a policy grounded in a health and safety objective will have a strong justification, but if the policy has the potential to have an adverse impact on employee rights or freedoms, it still must be properly developed with as little intrusion on employees as possible.
“Employers need to properly develop their policies, in an evidence-based manner, including considering alternatives and lesser intrusive means, and document their process for doing so,” says Amos-Stewart. “At the end of the day, employers should have objective evidence of why a controversial policy like the one in this case was developed and why the alternatives aren’t acceptable.”
See Fredericton Police Union, UBJCA, Local 911 and Fredericton (City), Re, 2022 CarswellNB 297.
Read more: A worker’s belief that masks didn’t protect against COVID-19 was not tied to a religious belief that would exempt him from a requirement to wear one, the BC Human Rights Tribunal ruled.
