Reproductive Rights in the Fire Department

Thank you for having us.

Thank you.

Well, first of all, preplanning is, I guess — the rules are try to anticipate every possibility in advance. But I think an easier way to approach it is just to pick a quiet time, imagine you've been told by one of your firefighter that she's pregnant. And now think about all the things you should have done to get ready for this moment.

Number 1, learn about pregnancy generally and firefighter pregnancy in particular. There's a lot more information available out there than there was as recently as 3 or 4 years ago. The second is know the rules, starting with federal and state law. For example, the Pregnant Worker Fairness Act and state law as well, because all 50 of the states have their own laws regarding pregnancy in the workplace.

Your own jurisdiction's rules: For example, there may be city ordinances that apply and there may be collective bargaining agreement provisions. So, map out all of these resources before the event occurs. Identify light-duty or alternate duty options in advance. There's nothing worse than somebody coming in and saying, “I can't do full duty as a firefighter,” and now you have to scramble to figure out where to assign them.

So, identify the options, physical requirements for those options, detail possibilities. And by detail, I mean possibly assigning someone to work in another local government department. And that's very particular by jurisdiction. The next step is to be ready to familiarize the firefighter’s OBGYN physician with the firefighting environment and the tasks a firefighter is called upon to do. And finally, be ready to discuss physical limitations and reasonable accommodation options with the firefighter.

So, are there any physical limitations that you have? What are they? Let's compare those limitations to alternative duty options and see where we go from here.

The critical thing to understand is that the fire chief does not dictate to the pregnant firefighter what the alternate conditions or the alternate accommodations are. That's something that's mutually agreed on. And the employee is actually expected to take the initiative.

When pregnancy’s reported, I think the first thing I want to tell you is the 2 things you ought not to be doing, which are really important.

One, make sure that you don't have a mandatory reporting procedure that somebody has to tell you as soon as they find out that they're pregnant.

And two, don't get all nervous and put the person on a leave of absence or on light duty right away.

Those are 2 things that are definitely going to get you into trouble, especially as the laws have been updated. At this point, what you're going to do is you're going to go further in detail to what John has just gone over. You want to make sure that you have readily available your department's SOG or SOPs and your city's policies regarding pregnancy and leave.

You want to make sure you know where to find any provisions in a collective bargaining agreement that might apply. Because depending what part of your workforce the firefighter or even the administrative assistant might be in, the rules might be different. Make sure you decide who the liaison is going to be with the firefighter throughout her pregnancy and when she returns to work because, if anything else, that helps to have a point person. And then have a meeting with the pregnant firefighter, congratulate her.

Of course, talk with her about her pregnancy and let her know that there are a number of options available to her. Ask for what her plans are. Is she feeling physically all right to continue working right now? Does her treating physician understand what her duties are as a firefighter? And if not, there's some information that she'll be able to provide her.

It's 1582 Annex C, which explains the risks of a firefighter's position during pregnancies and the risk to the fetus. It's not law, but it can give an OBGYN some information that they might not otherwise know. Ask her what her thoughts are, how she's feeling about working through the pregnancy, what types of change in her work conditions does she know that she needs or might she foresee needing.

So, you got to engage in this interactive process, and it’s started by the employee making her report. But once the employee makes the report, the burden is on both the employee and the department to work through the process. And at that time, you may need more information before you can put together a timetable, or you might have enough at that time.

You're going to work through a timetable, which is going to be subject to change as to how long do you think the firefighter will be able to, for example, stay in her suppression duties, will be able to wear her uniform. I may need to switch her hours. You know, how the pregnancy status is going to affect her job.

And remembering it's really important to remember that this timetable is going to be subject to change as everybody's pregnancy is not alike and things happen during pregnancy. When I talk about light-duty options, as John said, you ought to know what light-duty options are before you have the meeting with the firefighter. And that's no different than when you've got a firefighter injured on the job.

And when they come back to work, you should be knowing what your light-duty options are at all times when it arrives. Talk about a tentative return to work plan and realize that may change as well. And again, remind the firefighter that you are the point person or whomever is the point person, that if she's got any questions, who she should reach out to.

And that it's an open communication process.

And I think in that way — and John can speak to this a little bit better — it's no different than how you plan for a structure fire or anything else operationally; you're not going into that cold. And that's the same approach we recommend with respect to these personnel matters.

Right. It's think through the steps. Just, there should be no surprises. And the problem with pregnancy in the fire service is that too often, to the fire chief and the members of the department, it turns out to be a surprise. But fortunately, the fire service is learning, and that's part of the preplanning experience, and that is learning from mistakes or good ideas that other people had.

Well, I should say right off the bat that a number of the risks are not unique to firefighting. They're basically risks that occur in any workplace. So, we should make that clear from the start. Infertility or reduced fertility is 1 possible effect. Menstrual or ovulatory cycle disorders, sex hormone imbalances. Miscarriage is an extremely unlikely possibility, at least based on my experience as a chief dealing with pregnant firefighters.

Stillbirth, again, is possible. Birth defects. Although, I should point out here that it's important to explain to firefighters, physician or OBGYN doc what protective equipment and clothing the firefighter has available and is required to use.

In the cases I dealt with, that made a big difference. That was news to most physicians that women firefighters wore self-contained breathing apparatus just like men.

Fetal trauma risks. They increase after 13 weeks because of the fetal position in the uterus. So that is about the time that, again, in my experience, firefighters are beginning to take a look at discontinuing active firefighting duties and looking for a reasonable accommodation. Child development disorders, premature births, low birthweight babies — and work restrictions can influence the risk in a positive way.

With firefighting, it's difficult to say that you'll do some firefighter duties and not others. That's the point in time where you can begin to discuss those alternate-duty options. And I need to point out, in case there are any male firefighters out there that think there's something unique to women, there are male firefighters that are subject to risks as well.

There's a Danish study that indicated that male firefighters had a 46% to 53% increased risk of male-factor infertility compared to general workers. So, again, there's nothing unique as far as reproduction and impact on reproductive capability for male firefighters. In firefighting populations, male infertility is 46% to 53% higher. Maternal employment as a firefighter was associated with ventricular septal and atrial septal defects among offspring. And semen parameters were lower in the firefighting population than in the male population at large.

And once again, the information, the references that Alisa pointed out, should be reviewed by male firefighters as well. In other words, this exposure burden is not something that's limited to women firefighters. It's basically an issue that all firefighters need to confront, and all firefighters need to address.

So, the first thing is that light duty as a matter of law is generally not required. But where we see it required is it'll depend on what your collective bargaining agreement said, which city policies are, what your department's policies are. So, you're going to need to understand what those policies are, under what circumstances light duty is provided, how long light duty will be provided.

You also need to understand, depending on where you are, does light duty mean you will have a light-duty job anywhere within your fire department or in some of the larger — like in the city of Chicago, if you go on light duty, you're a city of Chicago employee, so you may end up as a library clerk and not working within the fire department.

So, you want to make sure that either as administration or as the firefighter, you understand what all that is. You want to make sure to the extent that there's light duty available, that the firefighter is qualified to do that job. Does she have certifications that she may need, the other education that she may need? You want to take a look at those risks as well.

How is that going to work with the firefighter and with her pregnancy if she's been working a 24-48 and that's been working and all of a sudden, you're trying to shift her to a 9-to-5, 5 days a week. How is that change in sleep going to affect maternal health and the fetal health?

Right. And we kind of see the opposite with men who have fertility issues. A lot of times what the request is for them to go from a 24-48 or 48-72 to a 9-to-5 for a period of at least 6 months, because that type of regular sleep cycle has been shown in the Danish study and some other studies to increase male fertility.

So again, we can't have a 1 size fits all. One of the things we also have to look at is when we're making light-duty options available, are we offering pregnant firefighters the same light-duty options that are made available to other people who might not be able to do their full duties, whether they're male or female? If you have somebody who's come back from a cardiac event and they're not able to work the 24-48, are you offering your pregnant firefighter the same light-duty options that you're offering the person who had the cardiac event?

So, we need to make sure that we're treating them the same way from a gender perspective. And the other thing you need to think about is compensation. When we're switching somebody to light duty, especially if we're changing a shift, how is that going to affect their compensation and benefits? And again, with the Fair Labor Standards Act — particular because we have particular ways that we pay firefighters working a 24-48 or 48-72 and we switch them to a 9-to-5 — how is that going to work?

So again, this is why the preplanning is really important.

Well, that's something that you establish on a case-by-case basis. But here are some examples. One is permitting shift trades. So, if there's a better shift, that’s not — if A shift is preferable for whatever reason, sometimes 2 firefighters may want to exchange places, then that's something that can be built into a reasonable accommodation. Keep in mind that the accommodations are always shaped or framed around whatever physical limitations there may be. Light or alternate duty.

And again, we've stressed this before, you need to identify what those alternate-duty options are. And 1 other piece of advice for chiefs, sometimes you can prepare for alternate duty, at least to a limited extent. In a department I worked on, we made level 1 fire code enforcement officer part of firefighter basic training. That meant that every firefighter graduating from basic training was able, by state law, to go out and enforce the state fire code in low-risk occupancies.

So, in the cases of pregnancy we had, there was an immediate light-duty opportunity and the firefighter was already trained. And the investment up front of the time for the training was really relatively minimal. I must point out that North Carolina has got a very sophisticated and advanced community college system. So, we were able to do that training without much difficulty with the cooperation of that community college facility.

Provision of appropriately sized uniforms and safety gear. I have to point out there that turnout clothing, the protective coats that firefighters wear, can be a little tricky. And most of the time, about the time that the firefighter can no longer fit within the turnout clothing that she's been issued, that's also about the time that some of these other factors I pointed out earlier with regard to pregnancy issues can come into play. In any event, that's something that you need to work on in advance because I can tell you that a uniform procurement agency or a turnout coat dealer, protective clothing dealer, is going to need some time to plan, if you are going to be asking for a larger set of turnout clothing. Additional break time. Although in the fire service, break time is pretty much whenever you're not fighting fire or training.

So that's more of an issue for women in the fire service who are working in jobs other than fire suppression. Use of leave to recover from childbirth. That's a reasonable accommodation. Excuse from strenuous activities. And that's a little more difficult if somebody is maintaining or wants to maintain their presence in line firefighting because by its nature those are strenuous activities.

So, my advice is consult with the firefighter and with the firefighter’s physician, if that can be arranged. And then you can figure out what strenuous activities need to be avoided and how. Removal of unusual and unprotected exposure to unsafe compounds. Actually, that's more of an issue in the firehouse, especially on the apparatus floor, where you're exposed to carbon monoxide from truck engines and truck exhaust, than in fires where you're wearing a full set of protective clothing.

Again, in one case I had, we had a firefighter who was pregnant who was a member of the hazmat team. But once I explained what it was that hazmat team members wore when they were dealing with a hazardous materials event, he said that he was comfortable with that firefighter continuing in that activity until such time as the evaluation indicated that she needed to refrain from that kind of active-duty activity.

Flexibility in work hours or a modified schedule tends to apply more, again, when you're looking at alternate duty rather than firefighting. When you get into an area here where fire departments are not expected to take on alternate-duty responsibilities that impose an undue hardship on the department. I think that if a firefighter, if a pregnant firefighter, said, “I can work 12 hours at a time and you need to bring somebody in for another 12,” I think that would probably fall below the threshold of something that was unacceptable or harmful.

But again, some of these things have to be approached on a case-by-case basis now that we have the Pregnant Workers Fairness Act in hand. Reassignment. And Alisa has pointed out 2 of the critical issues. What are the minimum qualifications and what are the essential functions? Because I think you're going to have some internal difficulty if you assign someone on an alternate-duty basis to a job for which they're not trained. Although, I think it's perfectly reasonable to say that part of that reassignment could consist of an orientation period where the person can be brought up to speed.

Once again, that's why preplanning is critical. Have these arrangements all made in advance. Modified workplace policies. So, for example, if somebody needs more frequent bathroom breaks, other people in the group are aware of that and are prepared to deal with that in the context of emergency response if it's necessary. Paid and unpaid leave is another accommodation. You must remember that if you're doing paid or unpaid leave, you guarantee that that person comes back to the job that they held before they went on leave at the rate of pay they were entitled to before they went on any kind of leave.

And in the fire service, that may be that you're assigned to a different fire station, a different fire truck, but your duties are the same. And in all other respects, you’re functioning as a firefighter. Job restructuring, that's probably not something that's going to work when someone wants to continue to work in a fire suppression setting because at a fire scene, it's difficult to isolate or reassign people who do only some firefighting activities.

That makes more sense in the context of preplanning for an alternate duty assignment. And finally, and this is an interesting accommodation and it ties into another federal law, the Pump Act. Another reasonable accommodation is if you have a firefighter who is now in what some folks are referring to as the fourth trimester, in other words, immediately post-birth, having a refrigerator available along with other lactation facilities required by the Pump Act is also a reasonable accommodation.

And we've already had fire chiefs and fire departments beginning to acquire the refrigerators needed to accommodate those firefighters. So again, those are some examples. It's a much longer list. This is part of your preplanning adventure. And by the way, when you're preplanning, involve your staff in it so that they're not surprised. And you may be surprised to find out that they have some ideas that you haven't thought of.

The neat part of the accommodation process is you can get as creative as possible and make things work, and your staff is going to have ideas. One fire department I've worked with, they have the pregnant firefighter working 9 to 5 doing inspections, but she's working the rest of her shift at her fire house. The fire — you know, the fire chief or the B.C. has left her work to do. This way she's not isolated from her crew during her pregnancy. And you know, which from an emotional standpoint, is also very helpful. And this is something that they came up talking among themselves as to what would work. So, the sky's really the limit here. We want people to be creative, but the key is to make sure you have the discussion. What you can't have, especially in a state like mine, Illinois, where it's forbidden by Illinois law, you know, you cannot mandate an accommodation the employee doesn't want unless there's some hardship or clear medical reason for it.

So, that's why these accommodations discussions are so important.

I think another piece of the accommodation activity is that it's a continually moving target. 2 months into a firefighter’s pregnancy, suddenly someone can have an idea about another accommodation that's available possibly. And again, it's a moving target and you can shift accommodations with the employee’s cooperation. That's just like Alisa said: It's not something that's imposed on the firefighter by the chief.

It's something where they need to have an alternate duty, or accommodation available is required. But once you start working on the details of that, it's a collaborative process. But underscore the word collaborative. The days of fire chiefs putting a pregnant firefighter on leave are gone. I should make it clear the days of a fire chief unilaterally ordering a firefighter to go on leave in connection with a pregnancy is an option that's no longer available as, I think, Alisa, of June 23rd.

The 23rd or the 27th.

I think you're right. I think it's the 27th. That's when the Fairness Act, the Pregnant Worker Fairness Act went into effect in the United States, passed in late December of last year, effective June 27th.

I think one of the pieces that a lot of fire departments miss is retraining and making sure that a woman is physically prepared to come back to the job. You know, we tend to do that with on-the-job injuries, but, you know, you get somebody who's gone through childbirth, which can be quite an endurance process. You might have had somebody who's had a C-section.

You might have had somebody who’s lost a child. And so, we need to make sure that whatever physical fitness standards, that we're doing a training. Also, if there’s been any training while the person has been on a leave of absence, have there, you know, been the mandatory sex harassment training, or has there been a particular hazmat training? So that we're making sure if and when the firefighter is able to return to full duties that they're going to be at par with their peers.

And one of the other things we need to recognize as we have the pregnancy reported, we might be doing light duty or some other accommodations, then a leave of absence and we might be going back to other accommodations or light duty again when the firefighter returns to work. And then hopefully back to the same position. So, you know, we talk about the family medical leave when we talk about a return to work.

What a lot of employers, not just in public safety, fail to remember is the Family Medical Leave Act sets the floor of a 12 weeks leave, not the ceiling. So, 12 weeks off may not be enough for everybody. You know, depending on the nature of the pregnancy, the nature of the childbirth.

So, again, flexibility is key. Recognizing that your timetables are going to change again, you may need discussion with the woman's physician about return to work. You may be working with your union on return to work. Are you going to be making an adjustment in compensation, working with the human resources department? So just like you're bringing back another employee who's been injured or ill for any other reason, that should be treated the same way.

And a lot of departments have standards. In some cases, the length of retraining is based on how long you were gone. So, if you were gone for 10 weeks, then you're going to be due 16 hours of refresher training, and that means 16 hours of basic firefighters’ skill reacquaintance. And the second thing, and I think we mentioned this under preplanning. But again, as Alisa mentioned, it's really critical that you know what the rules are and how different laws apply.

And I will say this, EEOC, if you go to their website, has got some very, very good Q&A materials on the Pregnant Workers Fairness Act and the Pump Act that are written, believe it or not, in layman's terms and not necessarily legal terms. And I recommend those highly. The International Association of Fire Chiefs has also put together some materials on dealing with firefighters who are pregnant.

A lot of resources are out there. And I always urge people to contact someone who's been there, done that and got the T-shirt. Take advantage of what they learned and what they can share with you as you move into this process, because it is a process that's going to evolve along the way. And the stakes are high because every pregnant firefighter that I work with has been an outstanding employee going in and has been an outstanding employee coming back.

And you don't want to see somebody lose a job or decide they don't want to continue with the job because you've made the environment inhospitable.

The mothers are entitled to pump for a year, at least under federal law, it may be more under state laws, when they come back to work. So, this shouldn't be a surprise to anybody. And this is another opportunity for people to be creative, speak with other people about making sure you've got an appropriate lactation space, how that's going to work, when a call comes in. Don't wait for those things to happen.

I think that's where I get a lot of my calls, is, “What do I do? I want to breastfeed or I want to pump, and I’m going back to the station.”

You know, one of the cases involving a fairly significant original damage award occurred in Tucson, Arizona, and it was over a post-birth lactation. And this firefighter actually had a friend who wanted to swap station so that she could be in a more welcoming environment for lactation. And the fire department said, no, we're not going to accept that as a reasonable accommodation.

And she took them to court and ultimately won. And it was appealed eventually to EEOC and the award was reduced, but it was still painful for the department to go through the experience.