Enforcement guidelines issued recently by the federal Equal Employment Opportunity Commission (EEOC) have stirred up a legal controversy that could be important to fire departments and firefighters across the country.
At issue are provisions in the Americans with Disabilities Act (ADA) that protect workers with mental impairments. This recent action underscores the need for employers (including fire departments) to take this law seriously.
The law protects those with physical or mental impairments against discrimination on the job and elsewhere. We see its effects everywhere, from greater wheelchair accessibility in buildings to accommodations for those with a loss of sight or hearing. In part, it is intended to force fire departments and other employers to get rid of preconceived notions and judge employees on their individual abilities to perform their specific jobs.
With the publication of an Enforcement Guidance document in March 1997, EEOC has sent a message to all employers, including fire departments, that they must look carefully at ways to accommodate employees who suffer mental impairments. The law requires employers to make reasonable accommodation for otherwise qualified employees who have a psychiatric disability, unless doing so would cause undue hardship, or pose a direct threat to the safety of the employee or others.
The guidance calls into question many long-held fire service assumptions and practices. It will demand attention from fire service leaders. But this language raises a host of questions, as evidenced by the fact that EEOC found it necessary to prepare and publish a lengthy guidance document to explain how the rules work.
Mental impairment. The law defines disability as, "A physical or mental impairment that substantially limits one or more of the major life activities of an individual." A mental impairment is any mental or psychological disorder, such as emotional or mental illness or post-traumatic stress disorder. But this is a very broad definition with many open-ended terms. This reflects a belief that disability should be dealt with on a case-by-case basis rather than on the basis of broad generalizations or inflexible rules. As EEOC spokeswoman Sharon Ren-nert noted, employers have to be careful about absolutes.
Character traits like irritability, chronic lateness and poor judgment are not, themselves, mental impairments. But any of these might be signs of a mental disability that would give rise to ADA coverage. The obvious problem for both emergency service managers and employees is deciding when one of these traits is linked to a mental impairment.
EEOC's guidance tries to clarify this. The rules limit coverage by requiring that the impairment must "substantially limit" one or more major activities of the individual in order to rise to the level of being a disability.
Substantial limitation is evaluated in terms of both the severity of the individual's limitation and its duration. An impairment substantially limits an individual's ability if he or she is significantly restricted compared to the average person in the general population (which may be different than the population of all firefighters or emergency service providers). Even with this explanation, however, every fire department personnel decision will be subject to challenge.
Temporary conditions are not substantially limiting. Presumably, this would rule out an ADA claim resulting from stress following a specific incident. But the very nature of the emergency services requires repeated exposure to traumatic situations. Thus, it seems possible that virtually any personnel could claim a long-term post-traumatic stress disorder resulting from repeated responses to traumatic incidents.
Because of the law's ambiguity, a fire department must seriously consider any employee's ADA claim of mental impairment and request medical documentation from the employee.
What constitutes a reasonable accommodation? Once it is decided that an employee suffers from a mental impairment under the ADA, a department must then decide what to do with the employee. The law requires that an employer provide a "reasonable accommodation" to an individual who is otherwise qualified for the job unless the employer can show that providing the accommodation would create an undue hardship.
Again, this raises questions. What are reasonable steps for an employer to take? What is an undue hardship? The EEOC Guidance makes clear that this will have to be determined on a case-by-case basis, and it does not give specific answers. EEOC even admits that in some cases, the precise nature of an effective accommodation for an individual may not be immediately apparent!
EEOC does suggest some of the types of changes that might be made to accommodate the needs of a mentally impaired employee. Among these are changes in work schedules, changes in supervisory methods and reassignment to another position. However, some accommodations that might be appropriate in other lines of work would be completely inappropriate in the fire service with its inherent exposure to dangerous environments.
The law does not require changes that create an undue burden. Again, though, there is little guidance as to what makes a burden "undue." Rennert, however, did note that a department would be required to reassign an employee to another job only if there was an existing vacant position.
Fire departments have, for generations, been accommodating firefighters as they have become physically or mentally "burned out" after many years at a busy company by allowing them to close out their careers at slower stations. The law, with all its complicated language, may be merely institutionalizing this longstanding practice. Hopefully, it isn't replacing this voluntary informal collaboration with a legalistic adversarial process.
Another potential problem for the fire service is that of job standards. The ADA does not require that fire departments lower their job standards to accommodate impaired employees. However, the requirements must be necessary to perform the jobs in question. Similar rules have been applied by other non-discrimination laws. Undoubtedly, many departments have revised their performance standards as a result. However, the ADA forces departments to again reassess these requirements from yet another perspective.
The ADA raises other tricky issues such as notification and disclosure requirements, allowable discipline, and limitations on questions that an employer can ask an employee or job applicant. Fire departments and their employees are well advised to have clearly spelled-out policies for handling these matters. Case-by-case treatment of treatment claims will replace rigid application of the rules. No longer will many of the old stereotypes be legally acceptable.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.