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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.