PROMOTION AND HBV CARRIERS UNDER THE ADA
FIRE SERVICE COURT
One of the questions firefighters and fire service organizations ask most frequently is whether the Americans with Disabilities Act (ADA) encompasses promotion of firefighters with disabilities. The basic answer is yes.
In the recent case of Kuntz v. City of New Haven [2 A.D. Cases 905 (D. Conn. Mar. 3, 1993)], the court held that Sergeant Kuntz, a 35-year veteran of the New Haven (CT) Police Department who had suffered a heart attack in 1984, was entitled to promotion to lieutenant despite the police department’s arguments that he could not fulfill the duties of a lieutenant. The legal issue in dispute before the court was whether Kuntz was “otherwise qualified” for the position of lieutenant.
Kuntz suffered a heart attack in 1984. After the heart attack, his duties as sergeant were reduced for a short period of time, after which he returned to normal duty, performing all assignments without difficulty. Kuntz supervised as many as 20 individuals and assumed some responsibility “in excess of that usually required of sergeants.” In addition, evidence showed that the job functions of a sergeant were more physically strenuous than those of a lieutenant.
The police department conditioned Kuntz’s promotion on his successfully passing a medical examination. For almost two years, the evaluating physicians wavered on whether Kuntz was fit for duty. The police department’s internist eventually deferred to the judgment of Kuntz’s personal cardiologist, who provided the opinion that Kuntz could easily handle the job duties and functions of the lieutenant’s position. Despite this medical clearance, the police department denied Kuntz’s application for lieutenant. Kuntz brought suit under the Rehabilitation Act of 1973.
The court, in granting an order directing the New Haven Police Department to promote Kuntz to lieutenant, utilized the two-part analysis set forth in Gilbert v. Frank |949 F.2d 637 (2d Cir. 1992)]. The court first determined the essential functions of the job and then whether Kuntz could perform those functions with reasonable accommodation. In the court’s analysis, the functions of a lieutenant were predominantly supervisory and administrative in nature, and the times during which stressful work—such as high-speed chases and apprehending suspects—was required were “proportionally so insignificant that they cannot be considered essential functions of the position.”
Fire service organizations should evaluate their promotion procedures to ensure compliance with the ADA. Special attention should be given to the analysis of the essential functions of each position prior to the beginning of the promotion process, and any request for reasonable accommodation should be addressed. The defenses of undue hardship and safety and health may be available to fire service organizations: but these defenses often areineffectual in situations concerning promotions.
In another recent decision [Roe r. District of Columbia (D.D.C Lexis 18071. December 21, 1993)]. the U.S. District Court for the District of Columbia held that a fire service organization could not restrict one of its employees, a chroniccarrier of the hepatitis B virus (HBV). from providing mouth-to-mouth resuscitation solely because he carried the virus.
In that case, Richard Roe, a firefighter employed by the District of Columbia, was prohibited by the department from working as a firefighter for the period from January 1991 through October 1992 because he had been diagnosed with HBV. Firefighter Roe was trained to perform CPR and mouth-to-mouth resuscitation as part of his firefighting duties. He began work with the fire department in 1985 and subsequently passed the annual physical examinations required and administered by the fire department each year. The fire department’s exam did not test for the hepatitis B virus. Roe was aware that he had become infected with the HBV virus shortly after he joined the department in 1985 but chose not to reveal this to the fire department.
After learning of Roe’s HBV status in 1991, the fire department prohibited him from working as a firefighter. In 1992, through a partial settlement agreement, the fire department reinstated Roe while still prohibiting him from performing mouth-to-mouth resuscitation as part of his job. The fire department’s decision to restrict Roe because of his HBV infection was brought before the court under the Rehabilitation Act.
The court reviewed the most recent scientific evidence, which revealed that saliva-to-saliva transmission of HBV is only theoretical, and heard from several experts who testified that there is not a single documented case of HBV being transmitted through salivary fluid. In addition, the court found that the Centers for Disease Control’s universal precautions exclude saliva from the list of fluids with the potential tor transmitting HIV and HBV. Finally, the court found that the fire department did not routinely test all firefighters for HBV and that it did not make an effort to locate other firefighters infected with the HBV virus. The decision under the Rehabilitation Act has implications for tuture ADA cases.
Given this decision, a prudent fire service organization may want to reevaluate its current medical examination procedures, personnel policies, restricted duty programs, and related standard operating procedures regarding firefighters and other personnel with HBV, HIV, and other diseases. Research indicates that HBV stands almost no chance of being transmitted through mouth-to-mouth resuscitation. Is your fire department restricting firefighters with HBV from specific job duties?
