BY STEPHANIE WHITE AND JOHN K. MURPHY
A phrase I hear time and time again from browbeaten pregnant firefighters is, “Each time a woman gets pregnant in the fire service, the department acts like it’s the first time.”
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While I can chuckle at that since I’ve already waded through that muck twice, I can’t help but feel each time I hear it that the needle hasn’t moved very much on educating the fire service. Since my own legal expertise is limited to getting out of a speeding ticket and reading keyboard warriors’ opinions on social media, I decided to consult an expert on both the fire service and legalese. Enter retired Deputy Chief and current fire service law expert John K. Murphy, Esq.
Murphy also happens to be a licensed physician’s assistant (PA-C), so I knew some of the hidden medical issues that come with being pregnant wouldn’t have to be explained to him in awkwardly vivid detail. My fingers were double-crossed. Luckily for me (and everyone reading my ramblings), he agreed. We set to work on deciding how to best break down the legality and culture of pregnancy in the fire service and how the latest science and education should play a role in a department’s pregnancy policy.
The Law
The fire service, by its own reporting, is predominantly male, with approximately 4% women as career firefighters and about 11% as volunteers. Leadership in the fire service is as follows: 5.8% of all fire chiefs are women, while 94.2% are men.1
Although women make up a small percentage of the American fire service, there are important factors to consider about having a woman or several women in your department. If you are like most departments, women are tested the same as men, attend a recruit academy, complete a probationary period, work as firefighters, and are eligible for promotion and promoted along with their male counterparts.
They also become ill and injured and should be afforded equal benefits to male firefighters as related to light duty or off duty time to recover from these illnesses and injuries. One of the primary differences between male and female firefighters is the medical needs that occasionally arise for female firefighters, especially in the context of pregnancy and related complications.
Title VII of the Civil Rights Act of 1964 protects various classes of persons living and working in the United States against employment discrimination based on race, color, religion, sex, and national origin. There have been several amendments related to protecting pregnancy and nursing mothers.
In 1978, the U.S. Congress added to Title VII of the Civil Rights Act of 1964 the Pregnancy Discrimination Act of 1978, preventing discrimination toward pregnant workers and clarifying the rights of working pregnant mothers. Briefly, pregnancy may not be considered in making employment decisions and employers must treat pregnancy, like other disabilities, with accommodations. The Pregnant Workers Fairness Act (PWFA) was passed in 2022 and came into effect in June 2023.2
Although pregnancy itself is not a disability under the Americans with Disabilities Act (ADA), some pregnant workers may have one or more impairments or medical complications, such as gestational diabetes or hypertension related to their pregnancy, that may qualify as a “disability” under the ADA. An employer may have to provide that worker with a reasonable accommodation for the pregnancy-related disability.3
There were also additional protections provided for nursing mothers in the workplace with the enactment of the law called Providing Urgent Maternal Protections (PUMP) Act, which came into effect in 2022. There have been many legal cases involving nursing mothers and lactation space available while on the job, and this is another protection for nursing mothers prompting this law.4
Many states have already been providing protections for pregnant and lactating employees. For example, Washington state law provides specific civil rights protections for pregnant employees. These protections apply to an employee’s pregnancy and pregnancy-related health conditions, which include health conditions during pregnancy and after the birth of the baby, such as the need to breastfeed or express milk.
The Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time for an employee to express breast milk for a nursing child for one year after the child’s birth during the time such employee has the need to express the milk. Employees are entitled to a safe, sanitary, and secure place to pump at work other than a bathroom or hose tower—a space that is shielded from view and free from intrusion from co-workers and the public. Unfortunately, numerous fire departments have chosen to willfully ignore the established law and are sued by their members.
Many of us have heard of a nightmare situation that came out of Bridgeport, Connecticut, in 2013, where a female firefighter was forced to take unpaid leave while pregnant because there was no policy in place. Sound familiar? That’s because that scenario has repeated itself in many other jurisdictions.
Having both pregnancy and lactation policies in place means that when a firefighter gets pregnant, both the firefighter and the department are protected. No firefighter should be forced to have to choose between receiving a paycheck and having a child. Not many departments want to find themselves in a negative spotlight (especially in this day of social media and its far reach), and having a plan in place can help ensure your department is correctly following the law.
Have a plan; have a policy in place. A firefighter becoming pregnant should be considered a normal life event, and no one should be left scrambling trying to figure out how to “handle it.”
Working While Pregnant
Medical decisions to continue to work while pregnant are strictly between the pregnant firefighter and her physician. Fire departments find themselves in court when they intervene or interfere with the pregnant firefighter’s rights to work, especially with the administration of light duty or when the department requires the firefighter to “stay home” during the pregnancy, using earned leave and, at times, without pay.
Some pregnant firefighters petition for light duty the minute they discover they are pregnant, and the department must go through a whole decision process to accommodate this request; a good policy will help with that process. Some departments indicate through policy that pregnant firefighters are to be placed in a light duty active position the minute they inform the department they are pregnant. Other departments indicate that pregnant firefighters cannot work after the second trimester and instruct them to return to work, with medical clearance, after they deliver the child and take maternity leave. The department must carefully consider a variety of options to accommodate the pregnant employee and keep the department out of a legal quandary.
Pregnant firefighters have the right to work in a hazardous environment; it is their choice. This right was granted in a U.S. Supreme Court case in 1991, where the court decided that pregnant women can work in hazardous environments. (See United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 [1991].) This decision established that prohibiting women from knowingly working in potentially hazardous occupations is discriminatory and in violation of Title VII and the Pregnancy Discrimination Act of 1978. The case revolved around a policy of excluding fertile women from working in battery manufacturing jobs because batteries contain high amounts of lead, which entails health risks to peoples’ reproductive systems (both men and women) and fetuses.
At the time the case was heard, it was considered one of the most important sex-discrimination cases since the passage of Title VII. Although this case applied to private sector practices and policies, there is a nexis to all employees, and the fire service is no exception.
The bottom line is, it is the employee’s right to continue working when she is pregnant or when he or she is involved in attempting to conceive a child. The employee may request nonhazardous duty, and this duty may be assigned without loss of pay or benefits.5 The Beltane Guild Web site (thebeltaneguild.org/policies) contains an excellent sample policy related to pregnancy and the fire service.
The great debate on when a firefighter should come out of the field: With my first child, I stayed on the line until I was six months pregnant because I didn’t know anyone who had done that yet and I thought it would be fun to prove something. I had a fire the day before I was scheduled to come out of the field and ended up alone for a bit on the nozzle and a lot of heat. Not pregnant, the challenge would have been fun. After all the work was done, however, I spent the rest of the night anxiously monitoring my stomach for any movement or kicks. While that situation luckily caused my child no harm (or maybe that’s why he can’t clean his room), it did teach me that worrying about the sometimes-negative cultural attitude toward pregnant firefighters meant nothing in comparison to keeping my child safe.
Having a pregnancy policy in place not only normalizes firefighters having children but also creates an opportunity for departments to have all the latest research on toxins, firefighter miscarriage rates, perfluorinated alkylate substances (PFAS) absorption, and all the other things that can affect a pregnant firefighter in the field.
The Risk of Toxins
There are some lactating firefighters who are reluctant to return to active firefighting because of the hazards of toxic material contaminating their breast milk, thereby creating the possibility of transferring those toxins to their infant. Unfortunately, that assumption is true, as noted in a 2015 study by the Harvard T.H. Chan School of Public Health. The study revealed that PFAS, a widely used class of industrial chemicals linked with cancer and interference with immune function, appears to build up in infants by 20% to 30% for each month they’re breastfed. It is the first study to show the extent to which PFAS is transferred to babies through breast milk and to quantify their levels over time.6
PFAS is found in firefighting foam and contained in our bunker clothing. Our firefighting industry is lagging in seeking new sources of firefighting foam and changing the construction of our protective clothing to eliminate these toxins. The good news is that the Centers for Disease Control and Prevention found that there are more benefits to breastfeeding, and it is recommended despite the exposure to common chemicals for most women.7
There are numerous toxins affecting firefighters, and decisions related to breast feeding need to be made by nursing mothers based on the most updated research.
Reasonable Accommodations
Reasonable accommodations are found in Title I of the ADA of 1990, which requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship for the employer. “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”8
Light duty is a form of reasonable accommodation. It has been generally stated that if a department does not have light duty accommodation or has never had one, then it does not have to create a light duty position. However, the employer and pregnant or lactating firefighter must discuss a reasonable accommodation and make a justifiable and documented reason for creating the accommodation or the reasons for not allowing for it, usually because of the undue hardship it imposes on the department.8
Some departments do not make the affected employees’ reasonable accommodation suggestions to stay off the fireground and instead be assigned to a safer role in the department that does not expose the employee to certain toxins. In other departments, and after discussion with the affected employees, that department may say that a “reasonable accommodation” is to be assigned to a nonsuppression role and placed in a “safer” position such as dispatch, the fire marshal’s office, or some other administrative role during the time a mother is pregnant, lactating, and breastfeeding.
Some departments direct the lactating mother to “stay home” using the Family and Medical Leave Act (FMLA) or other leave until she is done breastfeeding and to return to work only when she is done breastfeeding. The problem here is the time some mothers breastfeed may exceed any earned time off—time that has already been used during maternity leave after having the baby. This is probably not reasonable accommodation.
If the department statement to “stay home” may not be an option for new mothers for a variety of reasons, they have the right to return to work under hazardous conditions. Although some fire departments have gone to great lengths to attract and retain working mothers, many returning to work mothers still lack basic accommodations, such as a sufficiently private place to pump breast milk at work.
In some cases, it’s a lactation room that’s far away, like 10 minutes, so it would take you 30 to 40 minutes to pump. There are dirty rooms; sometimes a room is there, but it’s one room for a dozen women to use. Sometimes women are told to pump in their cars or in the park or sometimes in the public lobby of the building.
Oh, the stories I can tell, from women being asked to pump in toolsheds or closets or being told that that they were pumping every few hours just so they could go hide in a bunkroom. There seems to be a big disconnect as to what the legality of pumping on duty is. Even more so, there seems to be a fundamental lack of understanding of why women need to pump so often. The answer is that if you don’t, you run a very high risk of infections and fever, and producing milk isn’t just something the body will stop doing on command.
Set your department and your firefighters up for success first by having a policy in place for breastfeeding mothers and second by fostering an environment where firefighters will feel comfortable enough to discuss at least the logistics of it (e.g., potential out-of-service time) with their officers.
IVF Fertility Treatments
Some female firefighters my undertake fertility treatments to become pregnant, which, under the law, is a medical treatment, and those workers are afforded protections too, but they’re somewhat limited.
Taking leave under FMLA for in vitro fertilization (IVF) or fertility treatments depends on your employer and how long you’ve worked there. There are certain qualifiers under FMLA related to the duration of employment. Although FMLA guarantees only unpaid time off, you could get up to 12 weeks of unpaid leave every year. You could use this leave toward parental leave. By strict definition, FMLA isn’t designed to cover infertility treatments. However, if your healthcare professional can affirm that your fertility treatments are medically necessary for you to become pregnant, you may potentially apply FMLA leave toward treatments or even medically required bed rest during pregnancy.9
In theory, your medical situation is no one’s business, and you have a right to privacy. But, depending on the type of fertility treatments you’re using, it might be unrealistic to keep this process to yourself. For example, IVF is managed in cycles that usually coincide with your menstrual cycle, so a full IVF cycle can last several weeks, and many couples require more than one cycle to succeed. You’ll need to factor in several appointments, including procedures like egg retrieval and embryo transfer.
Beyond that, keep in mind that some treatments require taking fertility medications. These can create unexpected reactions both physically and emotionally. Many fertility specialists recommend taking one or two days off from work for the egg retrieval procedure, and some doctors recommend taking a few days off after the embryo transfer too.
Remember that you control the narrative. You can provide general information without sharing all the details. Fertility is a sensitive topic that not everyone is comfortable talking about.
There is the added reality that while legal protections against workplace gender discrimination exist, some people have reported feeling like their work ethic or capabilities were questioned once they disclosed that they were undergoing fertility treatments. So, if you’re only comfortable saying you have to undergo medically necessary procedures, leave it at that—and don’t feel pressured to share more. If necessary, get documented support from your healthcare professional.
I think if you take a moment to look around your department, you’ll find that there are more than a few male and female firefighters struggling with fertility issues. Multiple studies have shown that getting and staying pregnant are becoming increasingly difficult for firefighters and, as such, more firefighters are seeking infertility treatment.10 As referenced above, the fertility treatments can be quite brutal. Shiftwork and its lack of sleep can also have a profound effect on a firefighter’s hormones, and the need to go on light/modified duty during this treatment process is increasing.
The new Pregnancy Workers Fairness Act (PWFA) that went into effect in June 2023 allows firefighters to request and receive accommodations related to pregnancy, both pre- and postpartum, as well as miscarriage (firefighters have double the rate of miscarriage compared to the normal population). In the past, workers had to prove that they had an ADA-qualifying disability to obtain accommodations. Now, departments must provide reasonable accommodations if workers have a known physical or mental condition related to pregnancy, childbirth, or related medical conditions. Firefighters, however, are responsible for informing their employer of these conditions.
A department’s pregnancy policy needs to not only take this new law into account but also consider the higher rates of infertility, miscarriage, and the greater risks of PFAS exposures.
The Desired State
The desired state is to provide equality to women firefighters through well-crafted and legally responsible policies and practices. It is generally the responsibility of upper management and human resources to create a climate of equality and equity for all members of an organization. Inconsistent or absent fire department policies have created problems in guiding decisions related to pregnant firefighters for the department and for the firefighter. Decisions made for these firefighters generally are made subjectively and not objectively. Policy can provide the objective lens for fair treatment of your pregnant firefighters.
The Reality
The American fire service has not eradicated discrimination. Most discrimination occurs in a much more subtle way, making it harder for firefighters/plaintiffs to prevail when they bring pregnancy-discrimination cases, an obstacle that may cause some women who believe they’ve been wronged to opt against pressing claims. Consequently, the steady decline in pregnancy-discrimination filings submitted to the Equal Employment Opportunity Commission in recent years—from 4,029 in 2010 to 2,273 last year—may overstate actual workplace progress.11
No rank, position, or title will protect anyone from potentially being a victim of discrimination, as seen in the multitude of discrimination lawsuits women firefighters have brought. Pregnant firefighters are especially at risk for workplace discrimination, harassment, disparate treatment, and retaliation, either during their pregnancy at work or on return to work.
Solutions
Much of the disparate treatment stems from fire officers or leadership not knowing how to deal with IVF medical treatments, an employee’s pregnancy, breastfeeding and lactation, and maternity absence. It is incumbent on departments to foresee the issues with firefighters who become pregnant and the associated needs of the nursing mother and plan in advance a proactive and equity-driven solution to a short-term issue.
Pregnancy is not a forever state. It is a short-term event ending with a retained firefighter with a healthy family. Let’s not make this a long-term issue entangled in litigation because you did not do the right thing legally and morally for your firefighters. Good policy can make this happen.
ENDNOTES
1. https://www.zippia.com/fire-chief-jobs/demographics/.
2. https://www.eeoc.gov/statutes/pregnant-workers-fairness-act.
3. https://www.eeoc.gov/pregnancy-discrimination
4. https://www.dol.gov/agencies/whd/pump-at-work.
5. https://womeninfire.org/wp-content/uploads/2014/04/repropack.pdf.
6. https://www.hsph.harvard.edu/news/press-releases/breastfeeding-may-expose-infants-to-toxic-chemicals.
9. https://www.healthline.com/health/infertility/working-during-fertility-treatment#telling-your-job.
10. https://19thnews.org/2023/01/firefighter-career-impact-fertility-pregnancy-concerns/
11. https://www.eeoc.gov/pregnancy-discrimination.
STEPHANIE WHITE is a 20-year veteran of the fire service and has spent the past 18 years as a professional firefighter/paramedic in a metropolitan fire department. Throughout her career, she has been actively involved in firefighter health and safety as a personal trainer, cancer awareness educator, and trained mental health peer.
JOHN K. MURPHY, JD, PA-C, MS, EFO, began his fire service career as a firefighter/ paramedic and retired as a deputy chief after 32 years of service. He is an attorney licensed in Washington state whose focus is on firefighter health and safety, firefighter risk management, employment practices liability, employment policy, internal investigations, and expert witness and litigation support. He is a lecturer, an educator, an author, and a member of Fire Engineering’s Fire Service Court Blog Talk Radio Show.
