FIRE SERVICE COURT ❘ By Beth Murphy and John K. Murphy
Firefighting is a dangerous occupation, with deaths and injuries taking a toll on our nation’s firefighters mentally and physically. At times, those suffering from physical or mental injury may be placed on disability to allow time for healing. Occasionally, these injured workers are terminated while on a disability. Is that legal?
Most employees in the United States are at will, meaning the employer can terminate them for any reason but not for discriminatory reasons. It is prevailing wisdom that while you are on a disability and off work, you are protected under the provisions of the Americans with Disabilities Act (ADA).1 Therefore, there are certain instances that termination while on a disability may cause the injured worker to sue an employer for wrongful termination. In many circumstances, employers may not discriminate against employees with disabilities and must provide them with adequate time off to recover from their injuries, possibly reasonable accommodations at the workplace when returning to work, and sufficient time to heal from an injury or illness.
RELATED
Fifty Ways to Leave Your Lawyer, Part 1 | Part 2
John K. Murphy on Training Liability: Q & A
Lessons Learned: Discrimination against a Disabled Firefighter
The primary federal law protecting qualified individuals with a disability resulting from injuries is found in the ADA law protecting applicants and employees with disabilities from workplace discrimination. The ADA applies to private employers with 15 or more employees under the federal standard, and if you are employed by a smaller employer, you may be protected under your state’s disability discrimination laws. (See https://www.eeoc.gov/laws/types/disability.cfm.) Fire departments and other public employers of any size are covered under the ADA.2,9
The ADA also protects new firefighter candidates from discrimination based on a record or history of disability—for example, a history of heart disease, cancer, or post-traumatic stress disorder (PTSD) or other disorders that do not inhibit your ability to do the essential functions of the job or your employer’s incorrect perception that you have a disability such as a missing limb. If, for example, you have a prosthetic leg that does not impair your ability to walk, it would be discriminatory for your employer to assume that you’re unable to do a job that requires walking.2 As long as you can perform the essential functions of your position, with or without a reasonable accommodation, your employer may not refuse to hire you or to fire you based on your disability. (See National Fire Protection Association 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments.)
Defining a Disability
Disability covered under the ADA is a physical or mental condition that affects an individual’s functioning in movement, senses, or activities that substantially limits a major life activity. According to the World Health Organization (WHO), the author of the WHO Disability Assessment Schedule 2.0 (WHODAS 2.0), an assessment for health and disability (https://www.who.int/classifications/icf/whodasii/en/), major life activities involve cognition (understanding and communicating), mobility (moving and getting around), self-care (hygiene, dressing, eating, and staying alone), getting along (interacting with other people), life activities (domestic responsibility, leisure, work, and school), and participation (joining in community activities).
Mental Health Disabilities
Not all disabilities are visible and easily identifiable. Mental health is an invisible disability and occurs more commonly than people may think. Mental health disabilities include anxiety disorders (general anxiety, phobias), mood disorders (depression, seasonal affective, bipolar), trauma and stressor-related disorders (acute stress, PTSD, adjustment), personality disorders (antisocial, narcissistic, paranoid), sleep-wake disorders (insomnia, sleep apnea, restless leg), substance-related and addictive disorder, neurodevelopmental (attention deficit hyperactivity disorder), and learning disorders (dyslexia, dyscalculia).
According to the National Institute of Mental Health (NIMH), 18.9% of adults in the United States have “any mental illness.” Research conducted over the past 10 years on firefighters, PTSD, depression, anxiety, sleep issues, and substance use has found a varied prevalence of mental health-related symptoms. Some studies concluded that firefighters struggled with a greater prevalence of mental health issues, while other studies concluded a lower prevalence. It is difficult to know for sure, because many mental health symptoms are invisible and only known for sure if the individual admits to having symptoms.
The unwillingness to come forward with a mental health issue means that individuals may not get the help they need and only get attention from their department because of problematic behaviors. These behaviors are often the result of a mental health issue that was not admitted to or detected prior to hiring or as a result of the accumulation of stressors related to the intersection of the job and personal life. Also, individuals in the department may find that they struggle with testing, writing, or promoting or may not live up to their potential, as is often the case with people who struggle with attention deficit/hyperactivity disorder or a learning disability.
With the increasing research and understanding of firefighters and mental health, many states are adopting laws to protect firefighters and first responders from discriminatory practices because of their invisible disabilities. Federal law bars employers from taking adverse employment action such as not hiring; terminating; or refusing a promotion based on protected classification such as race, national origin, religion, gender, veteran status, and disability, which includes mental health and other invisible disabilities. Under a reasonable accommodation standard, employers must make accommodations to those qualified disabled employees, which includes any accommodation that would not cause undue hardship for the employer.
If a firefighter claims a mental health disability, the employer must act on facts as opposed to stereotypes about a mental disability. Mental health disorders must be diagnosed appropriately by a trained mental health practitioner. As stated earlier, a mental health disorder may underlie behavioral issues noted at work that may lead to disciplinary action and termination. Anecdotal evidence supports that individuals have been fired or forced to retire because of suspected mental illness, whether disciplinary issues were present or not.
An employer may take action when it has evidence that a mental condition disclosed by an applicant would make the applicant incapable of performing essential job duties. Where there is evidence that a mental disability would cause an applicant to create a serious safety risk, regardless of reasonable accommodations, an employer may terminate or refuse to hire that person based on mental disability.3,4,5
Reasonable Accommodation
The ADA requires employers to provide reasonable accommodations to employees with disabilities if they are determined to be reasonable by the employer or by the nature of the disability. If a reasonable accommodation is needed to do the job, then a request must be made to the employer along with sufficient documentation from the treating provider to demonstrate the need.
Accommodating an employee means providing assistance or making changes to the job or workplace that would allow the employee to do the job despite having a disability.6 For example, an employer might provide reasonable accommodation to have a service dog for a firefighter suffering from PTSD or other medical disabilities. Accommodating a service dog requires some conditions placed on both parties. The employer does not have to accommodate a “comfort animal,” just a service dog. The ADA does not recognize any other animal other than a dog as a service animal.7
Although an employer isn’t legally obligated to provide the specific accommodations requested, an alternative accommodation may be found by the collaboration between the employee and employer. This is especially true when seeking accommodations for a mental health disorder (https://askjan.org). There are limits to an employer’s duty to accommodate. Your employer is not required to provide an accommodation that would create undue hardship—for example, significant difficulty or expense given the nature, size, and resources of the department.
One of the reasonable accommodations under the ADA is time off from work to accommodate your disability such as time off for surgery, for ongoing cancer treatments, or to recover from a back injury. This can be a complicated legal issue, as attendance is an essential function of most jobs. However, allowing an employee to take some leave to recuperate might allow the employee to return to work at full strength more quickly. At times, and if there is a violation of reasonable accommodation such as time off, courts will look at your job duties; how much time off you needed; and how your employer has treated requests for time off from employees without disabilities, among other things.6
Reasonable accommodations are basically what they sound like: making changes to the workplace environment, work schedule, and so on, as long as they aren’t so costly as to put a serious burden on an employer. Some examples from the Equal Employment Opportunity Commission (EEOC) or Job Accommodation Network include altering work schedules to allow an employee to attend therapy sessions, providing quiet workspaces, specific shift assignments, and similar accommodations.
Obviously, an employer does not need to make all accommodations; sometimes the cost of such an accommodation will create an undue hardship on the employer. However, the employer must at least attempt accommodations for an employee after a request from the employee. See White v. City of Vidalia (W.D. La. 2018), where a firefighter suffered a broken ankle at work that became infected and had a below-the-knee amputation. The fire department terminated him based on his disability. Was there a duty to accommodate this firefighter? Under the ADA, if White could perform the essential functions of his job with a prosthetic leg, that would be a reasonable accommodation, and the department should have pursued that option.
Family and Medical Leave Act
The federal Family and Medical Leave Act (FMLA) may be a part of reasonable accommodations providing eligible employees with up to 12 weeks of unpaid leave for a serious health condition or to care for someone in their family with a serious health condition. The FMLA applies to private employers with 50 or more employees and to public agencies regardless of the number of individuals employed. The employee must meet certain requirements to be eligible to take FMLA, including being employed for at least one year. Many states and cities have similar family and medical leave laws, which may apply to smaller employers or provide additional rights not found under federal FMLA.8 An example of reasonable accommodations is to extend the FMLA benefit for the injured worker to heal, although open-ended time off under this provision is not a reasonable accommodation.
Unreasonable Terminations
If you were terminated for declaring a disability or retaliated against for declaring your disability, you may have a basis for a discrimination lawsuit. Some examples include the following1:
- You were terminated shortly after you revealed your disability or requested a reasonable accommodation.
- Members of your department made disparaging comments about your disability or assumed that you were unable to perform the essential elements of your job because of your disability.
- The department denied or ignored your request for a reasonable accommodation.
- The department treated you differently from employees who do not have disabilities—for example, treating your time-off requests to manage your disability in conflict with nondisabled employees.
- You were fired or forced to quit (also known as constructive discharge) because your employer refused to give you time off from work for your disability.
- Your employer fired you based on stereotypes or biases about your disability.
If you find yourself in this situation, attempt to resolve it with your employer first. If in a union environment, your union may assist you. In a nonunion environment, possibly an advocate internally or externally can help you resolve this situation. If all else fails and you want to pursue a wrongful termination case against your employer, there are a few steps you will need to take.
Filing a Discrimination Charge
It is prudent to file an administrative charge of discrimination with the EEOC or your state’s Human Rights Commission before you sue your employer. You have either 180 or 300 days to file your charge, depending on your state’s laws or individual situation.10 In your written complaint and charge, you must describe your employer’s actions and why you believe they were discriminatory. The EEOC, or your state’s agency, will contact your employer about the charge. It may investigate, try to mediate or settle the dispute, or even sue your employer on your behalf. If the claim has merit, the EEOC will issue you a “right to sue” letter, stating that you have met the requirement of filing an administrative charge and you can file a lawsuit. You have only 90 days after receiving the letter to file a federal lawsuit.11
To bring a disability discrimination lawsuit under the ADA, the firefighter must be able to make a “prima facie” case, meaning “on its face” or “at first glance” in Latin. It refers to the evidence the employee or applicant must present to move the case forward. In employment discrimination cases, the employee or applicant must present enough evidence to allow the judge or jury to infer that discrimination occurred. If the employee does so, the employer must then present some evidence that it took the challenged job action for other reasons. Ultimately, however, the burden of proof in discrimination cases lies with the employee, who ultimately must prove that discrimination took place.1,12
Generally speaking, an employee must present evidence of three facts to bring a prima facie case:
- The employee had a disability, had a history of disability, or was perceived by the employer as having a disability;
- The employee was qualified for the position and able to perform its essential functions with or without a reasonable accommodation; employers are not required to hire or retain employees who can’t do the job—only qualified employees are protected from discrimination under the ADA; and
- The circumstances suggest that the employee was subjected to a negative job action based on disability.
Finally, if a fire officer or fire chief said the employee was being fired because of a disability, it may be enough evidence. Or, an employee might show that a disproportionate number of employees with disabilities were selected for layoffs and that the department posted their jobs shortly afterward. Remember, under the ADA, employers are required to make reasonable accommodations, allowing employees with disabilities to do their job. An employer who fails to provide a reasonable accommodation has violated the law and can be sued. The basics here are as follows:
- The employee has a disability as defined by the ADA.
- The employee informed the employer of the condition and requested an accommodation.
- There was an accommodation available that would have been effective and would not have posed an undue hardship to the employer.
- The employer failed to provide an accommodation.
Although employers are not required to provide the precise accommodation an employee requests, they must engage in an interactive process with the employee to come up with an accommodation that will work. Also, employers aren’t required to accommodate an employee by lowering performance or productivity standards, changing or eliminating essential job functions, or providing personal-use items (such as a wheelchair or hearing aid).
Employers cannot take adverse employment action based on any physical or mental disability you may have. You can keep your medical condition private, and an employer may only ask about any medical condition that you have in certain situations—for example, if you request accommodations after the department has made you a job offer but before you start work, when the employer is engaged in some sort of affirmative action in hiring, or when there is some objective evidence that you either pose a danger or are incapable of performing your duties because of your condition.
There may be situations where you choose to disclose a condition, such as when you need specific accommodations to perform your duties or to take an entry level or promotional test and you have dyslexia or vision disabilities. As a rule, it is better to disclose a condition and receive accommodations or benefits before they become necessary.13
If you think an employer has violated your rights under the ADA, reporting the situation to the EEOC will allow it to advise you on the situation and begin an investigation. You should also report to the EEOC if you are harassed in the workplace over your condition and an employer fails to take steps to correct this despite being informed of the issue. It is also illegal for an employer to retaliate against you for reporting to the EEOC or bringing an action against the employer.14
We suggest finding a capable attorney in your area who can guide you through this difficult time of your career and, hopefully, to a successful resolution.
Endnotes
1. https://www.nolo.com/legal-encyclopedia/wrongfully-terminated-having-disability.html.
2. https://www.eeoc.gov/eeoc/publications/fs-ada.cfm.
3. https://adata.org/factsheet/health.
4. https://lawblog.legalmatch.com/2017/01/23/eeoc-fights-mental-health-discrimination/.
5. NFPA 1582.
6. https://www.eeoc.gov/policy/docs/accommodation.html.
7. https://www.ada.gov/service_animals_2010.htm.
8. https://www.dol.gov/general/topic/benefits-leave/fmla.
9. 29 C.F.R. § 825.104(a); 29 C.F.R. § 825.108(a).
10. https://www.eeoc.gov//employees/howtofile.cfm.
11. https://www.eeoc.gov/employees/charge.cfm.
13. https://askjan.org/topics/Disability-Disclosure.cfm.
14. https://www.eeoc.gov/laws/types/facts-retal.cfm.
Beth Murphy, Psy.D., retired as a career firefighter after 12 years of service and is a clinical psychologist with a focus on workplace stress, traumatic stress, PTSD, and chronic pain and illness. She treats military, police, and fire personnel and is a consulting psychologist and clinical director for several fire departments and dispatch services. She is an author and frequent speaker of psychological issues at local, state, and national fire service conferences and hosts the Blog Talk Radio Show “Firefighter Behavioral Health.”
John K. Murphy, J.D. M.S, PA-C, EFO, 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, expert witness and litigation support, and risk management for fire departments. He is a frequent lecturer, educator, author, legal columnist, blogger, and member of Fire Engineering’s Fire Service Court Blog Talk Radio Show. He lectures at FDIC International, the IAFC’s Fire Rescue International, the Women in Fire Conference, the National Fire Academy, and the University of Florida’s Fire and Emergency Services program.
