VOLUNTEER FIREFIGHTER WITH ASTHMA NOT QUALIFIED FOR CAREER FIREFIGHTING POSITION
BY THOMAS D. SCHNEID
In the case of Huber v. Howard County [1994 U.S. Dist. LEXIS 5060 (D.C.M.D. April 15, 1994)], a federal district court in Maryland granted summary judgment in favor of the county, finding that a volunteer firefighter with asthma was not otherwise qualified for a career firefighter position and the county did not unreasonably fail to accommodate the volunteer firefighter`s disability when it failed to hire him for a career firefighter position. This case points out the importance of the distinction to be made between a volunteer firefighter and a career firefighter. Given the fact that courts have generally tended to support fire departments when it comes to the safety of the individual or other department personnel, this case exemplifies the position of most fire departments in the area of safety.
The facts of this case are fairly straightforward. John Huber, a volunteer firefighter for approximately eight years, successfully completed his training and became a certified cardio-rescue technician. In 1989, he applied for a position as a career firefighter with Howard County and in February 1990 underwent a physical examination in which Huber admitted that he had a history of childhood asthma and used an inhaler for treatment. The physician conducting the physical examination recommended Huber for hire as a firefighter recruit. Howard County, based on this recommendation of the attending physician, hired Huber as a firefighter recruit later in February 1990. As part of the firefighter recruit training, Huber was required to participate in a fitness training program and pass the final agility testing procedures. The training exercises required all male firefighter recruits to run 1.5 miles in under 13 minutes. The test was meant to ensure that firefighters possessed the requisite physical conditioning to assume the tasks of a firefighter.
Huber attempted the running test on several occasions and had to use an in-haler/bronchodilator to assist his breathing during this test. He ultimately finished the running test in a time of 13:02. Huber underwent additional medical examinations, and the treating physician stated that Huber was fit to undertake the stresses of a career firefighting position.
At the request of Howard County, Huber underwent an additional physical examination. Another physician indicated that Huber could not perform the duties without medication to control his asthma but he could “most likely” perform the firefighting duties of a career firefighter with medication. Howard County informed Huber that he could not carry his inhaler during working hours. In subsequent running exercises without his inhaler, Huber took 14:14 to run the required exercises. He was again referred for an additional physical examination.
At the request of Howard County, Huber was referred to a pulmonary specialist. The pulmonary specialist recommended that Huber not be hired, stating that, given the demands of a fire emergency, there was no medical plan that would enable Huber to serve without risk of future harm to himself or to other firefighters. Based on the pulmonary specialist`s recommendation, Huber was terminated from his position as a firefighter recruit. He brought suit under Section 504 of the Rehabilitation Act (RA), claiming that he was unlawfully discriminated against because Howard County refused to accommodate his disability. Responding to this claim, Howard County moved for summary judgment before this court on grounds that Huber did not have a disability as defined under the Rehabilitation Act and his condition could not be reasonably accommodated without affecting the safety and the health of himself and others.
The District Court first analyzed the issue as to whether Huber was disabled under the definition provided under the RA. Using the test set forth in Forrisi v. Bowen, 794 F.2d 931 (4th Cir., 1986), the court found that Huber`s asthmatic condition did qualify under the definition of a handicap. The second issue addressed by the court was whether Huber was otherwise qualified to be a career firefighter. The court used a two-part inquiry as set forth in Pandazides v. Virginia Board of Education, 946 F.2d 345 (4th Cir., 1991) finding a distinction between a volunteer firefighter position and a career firefighter position and finding that the county`s requirement of physical fitness as a basic qualification of a career firefighter was an essential function for this position.
INHALER USE NOT A REASONABLE
ACCOMMODATION
The issue of reasonable accommodation was addressed by the court in another two-part inquiry asking whether Huber could perform the job with reasonable accommodation and whether the county had failed to provide such accommodation. The court found that the request for accommodation by Huber was not reasonable, given the fact that his inhaler could not be used near an open flame and this inhaler could cause additional safety-related problems to Huber or other firefighters.
Additionally, the court noted that because of the equipment used by a firefighter, it would be difficult for Huber to use an inhaler at the fire scene. There was also concern expressed as to how long it would take for Huber`s medication to take effect in an emergency. The court stated that “an employer is allowed to consider potential safety risks to applicants, co-workers, and others in making a decision about employment criteria.” [Also see Serrapicia v. New York, 708 F. Supp. 64 (S.D.N.Y. 1989), aff`d, 888 F.2d 126 (2d Cir. 1989).]
The court also addressed the question of undue burden. Huber presented testimony from a physician stating that he could perform the essential functions of the job with several modifications. The physician recommended training for other firefighters to use a stethoscope to determine if Huber`s lungs were clear and have a paramedic at the fire station to examine Huber before going out on a call. The county argued that this accommodation would cause undue hardship because of the extreme costliness and the fact that there was no guarantee that Huber`s lungs would be clear at the fire scene or at any other time during the work shift.
The court, in finding for the county, stated that “an accommodation which permits an employee to work only when his or her impairment permits is not reasonable in a job, such as firefighting, where active attendance and immediate, undelayed participation is crucial.” Additionally, the court found that Huber may acquire additional disability days for both the normal permitted one day per month that could affect staffing in the hours of work for other firefighters. In summation, the court found that the request for medical leave would result in undue hardship for the county and that the risk of harm to Huber himself, other firefighters, and the public far outweighed the request.
This case illustrates the distinct differences between the qualifications of a volunteer firefighter and a career firefighter. Your department should evaluate its testing criteria to ensure compliance with not only the RA but also the Americans with Disabilities Act (ADA). Fire departments should also be aware that the court in Huber could easily have reached a different conclusion, as has been seen in Roe v. District of Columbia (Hepatitis B) and Doe v. District of Columbia (HIV), given the facts of the circumstance. Evaluate all aspects of your selection and training components to ensure compliance with the ADA and the RA, and address any unique situations on a case-by-case basis. n
THOMAS D. SCHNEID is a professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a certificate of advanced study in safety, a law degree, an LLM (master of laws) degree in labor and employment law, and a Ph.D in environmental engineering. He has 15 years of experience as a consultant and attorney for general industry.
