Should pregnant firefighters be given light duty even if that option is not available for off-duty injuries? How soon can a woman return to active duty firefighting after giving birth?
And what about breast feeding among active duty firefighters?
All fire chiefs should be familiar with legal requirements regarding pregnancy and employment.
These laws go back to the Pregnancy Discrimination Act (PDA) of 1978 but have been updated and made more specific through court decisions, new laws, and policy review since then. Most recently, the EEOC issued updated enforcement guidelines regarding pregnancy in July 2014.
The law is clear when it comes to pregnancy discrimination. Women who are pregnant or may become pregnant must be treated the same as other workers in terms of their ability or inability to work. The same is true for medical conditions related to pregnancy.
Floor, not ceiling
Discrimination against a worker with care-giving responsibilities also violates Title VII of the 1964 Civil Rights Act if such discrimination is based on sex, and would violate the Americans with Disabilities Act (ADA) if the basis is a family member’s disability.
Pregnant women must be treated at least as well as other workers with different medical conditions that affect their ability to work. However, a key U.S. Supreme Court decision (California Federal Savings & Loan v. Guerra, 1987) states that employers may offer benefits to pregnant women that are not offered to those with other medical conditions affecting their ability to work.
The court decision said that the intention of the PDA was to “construct a floor beneath which pregnancy benefits may not drop, not a ceiling above which they may not rise.”
This decision makes it clear, for example, that a fire department may offer a light duty assignment to a pregnant worker that is not offered to a firefighter who might have broken a leg while skiing.
Space requirements
The Supreme Court has also weighed in on whether a pregnant woman can be removed from a job if that job is potentially harmful to her fetus. The short answer is no, an employer cannot do this if the woman is still capable of performing her job duties similarly to other workers. This conclusion was detailed in the US Supreme Court decision UAW v. Johnson Controls in 1991.
And what about breast feeding? Do firefighters have a legal right to breast feed a baby or express breast milk in the workplace?
The brief answer here is yes, and several laws support this conclusion, including the Affordable Care Act, which requires employers to provide “reasonable break time” for workers to express breast milk until a child’s first birthday.
A private place “other than a bathroom” must be provided for this purpose. Employers with fewer than 50 workers may be exempt from this requirement if they can prove that accommodation would impose an undue hardship.
Lead role
If your head is spinning about now, you are not alone. The full accommodation of pregnancy, childbirth, family leave, and lactation in the workplace is relatively recent and a real challenge for some employers. Fire departments are among those who have struggled at times to make it work.
But many fire departments do make it work. Not only do these departments provide positive examples and benchmarking goals for others to use, but they also demonstrate why leadership on pregnancy and family issues is important in today’s fire service.
Nearly all fire departments at least pay lip service to wanting to be more diverse in their membership. Many fire departments are both sincere and frustrated in this quest.
We want to hire more women, they say, but they won’t take the test. And if they pass the test, then they don’t accept the job offer. And if they do make it through academy, a good number of them leave the job before completing a full career.
Why is this?
The potential answers to that question would fill space that far exceeds what is available here. But one factor that cannot be overlooked is how female firefighter candidates view a department in terms of how family-friendly it is.
What’s expected
Back in the 1980s, women were pioneers in the fire service and many of them put other goals, which sometimes included having children, on hold to make their career choice work. There were few legal protections for women back then and 30 years ago, most fire departments had given little if any thought as to how to accommodate a pregnant firefighter.
But times have changed, both with the law and in terms of the expectations of young women.
Like their male counterparts, they have full expectation that they will be able to combine work and family choices and obligations, and that they will be treated equally and fairly through the process.
If an employer looks like it will be intransigent or uncooperative regarding pregnancy, childbirth, and family issues, young women are likely to look elsewhere for career opportunities.
So developing good policies regarding pregnancy and family obligations is not just important for staying out of court. Having good policies in these areas is a key recruitment tool for any fire department, and not just in terms of recruiting good women.
Young men are also much more attuned to family-friendly policies and tend to make employment decisions based more on these factors than any previous generation.
Ultimately, it is simple: to get the best firefighters and also to steer clear of legal trouble, fire departments should develop the best pregnancy/family policies and practices that they can.
Of course simple does not mean easy, and accommodating a pregnant or lactating firefighter can be challenging, especially for smaller agencies. But it is doable. Fire departments have done it, and done it well.
Departments that are struggling with these issues should look to that leadership as they move ahead to make their organizations the best they can be.
