By John K. Murphy
THE ISSUE – A recent legal case involving the fire department in Davie, Florida, directly places into the national spotlight the need for proactive light duty policies and the equal administration of such policies to ALL of your employees, regardless of the disability or the need for light duty.
The recent case involved a pregnant firefighter whose employer’s current policy refused to put pregnant firefighters on light duty in their first trimester, regardless of their medical or physical needs. Instead, they had to wait until their second trimester, whether they had a doctor’s note or not. Ironically, the fire chief routinely granted other firefighters’ requests for light duty for non-work-related injuries. The policy is discriminatory and violates Title VII of the Civil Rights Act of 1964 by treating pregnant firefighters differently from their male colleagues.
A quote from the U.S. attorney for the Southern District of Florida states, “The policies and practices of the Davie Fire Department regarding the assignment of light duty for pregnant women were sexually discriminatory,” and that “Discrimination on the basis of sex and pregnancy is illegal.” Based on a consent decree, the town plans to discontinue its current policy. As stated by the Assistant Attorney General for the Civil Rights Division, the “decisions about how and when to restrict a pregnant woman’s work duties should be made by the woman and her doctor, and employers must make certain that their policies and practices treat pregnant women the same as people who are similarly able or unable to work,”
The federal government is quick in litigating discrimination complaints and they will not tolerate this discriminatory behavior by employers engaging in this type of unlawful discrimination. There many of cases across the country with similar fact patterns and with similar resolutions. The fact pattern behind this litigation was a female firefighter asked to go on light duty after becoming pregnant in 2009, but was told she had to wait until her second trimester despite a doctor’s note. There were several women firefighters in this department joining this complaint and lawsuit. The fire department also has required pregnant firefighters to leave active duty upon the start of their second trimester, regardless of their ability to do the job. The consent decree requires Davie to adopt policies that protect its employees from discrimination on the basis of sex, including pregnancy. The town of Davie must also conduct training to ensure supervisors properly handle discrimination complaints.
THE LAW – In 1978, the Pregnancy Discrimination Act was passed by Congress as an amendment to Title VII of the Civil Rights Act of 1964. The purpose of the Pregnancy Discrimination Act (PDA) was to prevent arbitrary and discriminatory treatment of pregnant workers. It assures employees that there is equal treatment for the pregnant employee that is equal to or possibly with greater accommodations as provided do for the employee who is injured off duty. There are a number of cases across the country that have affirmed and enforced the provisions of the Pregnancy Discrimination Act. In a 1987 case, the Supreme Court ruled in California Federal Savings and Loan Association v. Guerra further clarified that employers may legally do more for the pregnant worker than for the worker injured off duty and pregnancy-related conditions are treated “the same as” disabilities caused by other medical conditions. Among the hundreds of similar cases, the one that stood out protecting the pregnant employees against discrimination was a 1991 decision by the Supreme Court’s ruling in United Automobile Workers v. Johnson Controls, Inc. In that decision the Supreme Court stated, “Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them, rather than to the employers who hire those parents.” These numerous decisions by the Supreme Court allow pregnant employees to remain on the job as long as your condition does not affect job performance or pose a threat to you, your co-workers or the public. The Supreme Court rulings also allow employers, upon the employee’s request, to guarantee reassignment to a nonhazardous job i.e. light duty for a period of time after returning to work. These returns to work conditions would be at the direction of the employee’s physician.
THE POLICY — this sample policy can follow this simple format. Please work with your legal counsel for the correct language for your organization and to determine any change in the law:
PURPOSE: This policy is intended to provide guidance to the department concerning work-related assignments involving pregnant firefighters. The goal of these guidelines is to provide options for a pregnant firefighter to remain working in a full-time capacity performing full-duty assignments or alternative duty assignments, for as long as reasonably practical. These guidelines seek to establish a reasonable balance between a women’s right to work and to protect the interest the firefighter has in her job while guarding against the risks inherent in the performance of her duties. The firefighter and her physician shall make the decision of when the firefighter is to take a position of light duty, upon written recommendation of her physician. If an employee is temporarily unable to perform her job because of her pregnancy, the Department shall treat the pregnant employee the same as any other temporarily disabled employee to include light duty assignments.
POLICY: When a firefighter requires a light duty assignment due to her pregnancy, she shall inform the Chief of the Department and the Human Resources Department of her need for light duty due to her pregnancy with a letter from the attending physician. The department shall make every attempt to assign the employee to a light duty assignment without a loss of salary and benefits. The department is not required to create a light duty position but shall strive to honor the request for light duty if light duty is available.
During a pregnancy, a firefighter may be able to continue to perform in her usual, full-duty full range of assignments up to the time she and her doctor make a determination it is no longer an option. Pregnant firefighters should confer with their attending physician physician(s) and provide them with a current job description that delineates the essential job functions as a firefighter. Both the physician and the employee are expected to consider the risks and benefits of remaining in a full-duty status performing a wide range of assignments.
Absent absolute medical necessity, the Fire Department will not require a firefighter to accept a light duty or alternative-duty assignment or to take leave except upon the advice of her physician or due to a compelling public safety reason.
The Department assumes no special responsibility for any medical risks associated with the pregnancy, whether or not they relate to duty assignment.
REASONABLE ACCOMMODATION EQUIPMENT AND ASSIGNMENT
GEAR AND EQUIPMENT: A firefighter who has become pregnant can continue to perform her job duties as long as the appropriate firefighting gear and equipment maintains a proper fit. If gear no longer fits properly, the Department may relieve the firefighter of certain duties specific to wearing gear and equipment, such as structural firefighting or any other hazardous duties, requiring the use of turnout gear.
LIGHT DUTY REQUEST: The Firefighter should discuss her specific job duties with her attending physician, especially duties concerning structural fires and exposure to hazardous materials during her pregnancy. Based upon the attending physician’s recommendations, the member can request to be assigned to light or non-hazardous duties. The assignment of duties shall be made by the department chief or designated officer.
MATERNITY LEAVE: When a firefighter’s attending physician has determined that she should not work any longer and is required to take a leave of absence, the attending physician shall determine the leave duration, when it will become effective and how long she will remain on leave based on her current condition. This leave can start anytime during the pregnancy and generally continue up to eight weeks after pregnancy or longer based on her physician’s recommendations.
Leave time taken shall be agreed upon by the firefighter and the fire department, i.e. vacation, sick, or leave without pay under current department policies under FMLA provisions.
No firefighter, while pregnant, shall be forced to take leave by the fire department if the firefighter’s physician determines that the member is still able to work.
While on maternity leave, the firefighter will retain active status. All of the firefighter’s rights and privileges will be protected and will remain in place at the time she takes a leave of absence.
RETURNING TO WORK
Upon returning to work, the firefighter shall provide a written release from the attending physician stating that she is able to return to work. The capacity for full or partial duty should be noted in the return to work documentation and also, if in the case of partial or light duty return to work, the duration.
Firefighters, who are breast-feeding, upon returning to active duty positions, may be assigned to light duty upon their return to work if requested. The department shall make accommodations for lactating mothers to pump or breast-feed.
The Fire Chief, Human Resources Director or staff members privy to the medical information related to the pregnant firefighter shall maintain that information as confidential, to the extent permitted and/or required by law, but may forward it through the chain of command to appropriate authorities as necessary for assignment or notification of the employee has been placed on maternity leave for scheduling purposes..
Excerpts taken to formulate this policy draft with thanks from The Fire Service Women of New Jersey; International Association of Woman in Fire & Emergency Services and Women of Federal Law Enforcement Foundation.
As an employer with firefighters who may become pregnant, if light duty is provided for firefighters who are injured off duty, it must also be offered to pregnant firefighters. Employers are also permitted (though not required) to offer non-hazardous duty to pregnant firefighters even where they do not make such an offer to firefighters injured off duty. Procedures used to determine an employee’s ability to work while pregnant or to return to work following a pregnancy should be the same as those used in cases of other, comparable medical conditions. This includes forms to be filled out by the physician, and may include any physical tests or training administered to the employee prior to return to work. Those return to work tests or requirements shall not be punitive in nature and be applicable to ALL firefighters returning to work after a leave of absence for a medical condition. Employees using leave under the Family and Medical Leave Act (which became law several years after the Pregnancy Discrimination Act) must be reinstated into their original or an equivalent position, regardless of how the employer treats employees on sick or disability leave for other reasons. Family Medical Leave is a complicated law and you should consult your organization’s attorney for a complete understanding of FMLA and how it interacts with the Pregnancy Leave issues.
JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering and a podcast host.