Religious fasting: A legal issue for operators?

By and |  July 13, 2018

A colleague in our Occupational Safety & Health Administration (OSHA) practice group was recently asked to advise a client on how to accommodate an employee who was fasting for Ramadan.

Religious accommodations are something producers need to keep in mind when working with employees. Photo:

The concern was that the employee’s lack of food and water during the workday might contribute to safety or health issues for the employee and fellow workers. Here is what we would have advised if this were at a mine site.

Strict liability

First, we must remember that the Mine Act is a strict liability statute. If a safety or health hazard were to exist due to a miner’s fasting, the mine operator would be responsible for any violations, regardless of whether management had any knowledge of the situation. The same is true for any other type of safety or health risk related to a religious practice or other dietary restriction observed by a miner at work.

Certainly this brings into play federal anti-discrimination protections in Title VII of the 1964 Civil Rights Act and other state or local discrimination laws. Title VII requires an employer to provide a reasonable accommodation to facilitate an employee’s observance of a religious practice at work, as long as that accommodation would not cause undue hardship for the employer.

Fasting is a religious practice observed in many religions, including Christianity, Islam, Hinduism, Buddhism and others.

Fasting may involve limiting or foregoing food and drink for an extended period of time, which can affect the ability to work safely in a mine environment.

The question for mine operators is, given the nature of the work, including the potential for safety and health hazards, what type of accommodation would be reasonable and not unduly burdensome? The right answer in every instance is based on the particular facts at hand.

Citations for violations caused by miner’s physical condition

OSHA mandates heat illness protection through enforcement of the OSH Act’s General Duty clause. The Mine Safety & Health Administration (MSHA) has no similar heat illness protection requirements. In fact, with a few limited exceptions, there are no MSHA regulations specifically addressing an employee being physically fit for work.

This does not mean mine operators can escape receiving violations where the cause of the violation can be attributed to the miner’s physical condition. Under the strict liability scheme of the Mine Act, MSHA will still find a reason to cite the mine operator. This is done through citing for other violations that could be attributable to employee fatigue, lack of focus, heat exhaustion or other sources. An obvious one, in this instance, would relate to maintaining control of mobile equipment.

Accommodations for a fasting miner

In the interest of safety and health and to lower legal risks, mine operators should consider offering accommodations to miners who may need them during a time of fasting. One accommodation would be to temporarily assign miners to work activities that minimize exposure to heat or potential safety hazards that could arise for fasting employees.

Schedules may be adjusted to provide more break periods and time to rest, especially during the heat of the day. Schedules also might be tailored to limit how long a miner works outdoors in the sun. The operation might also consider allowing the miner to schedule days off during a period of religious fasting, if the miner requests it.

Additionally, supervisors should be instructed to monitor miners for signs of fatigue, heat illness or other indications of adverse physical effects from fasting.

Operators should be aware that if a miner were to experience a work-related health event, such as heat stroke, due to fasting at work, this could be considered a reportable illness. This would require a report to MSHA within 10 days of the event occurring.

The number of Equal Employment Opportunity Commission charges related to religious discrimination has been growing. Mine operators need to be cognizant of Title VII implications when a miner is fasting as a religious practice, but safety and health considerations need to be front and center to ensure that the miner and fellow workers are not harmed.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

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