Reproductive Health and Safety Issues for FirefightersThe medical background
The legal background
The information summarized here should help answer the most frequently asked questions about the reproductive risks firefighters and EMT's face on the job. For more comprehensive information, you may wish to order WFS' Reproductive Safety Information Packet, which covers firefighter maternity leave and alternate-duty options, parental leave, sample policy language, the Pregnancy Discrimination Act, the Family and Medical Leave Act, relevant Supreme Court decisions, and more. Ordering information is below.
Firefighters and EMT's face many hazards in the daily performance of their jobs. Among these hazards are reproductive risks: exposures to heat, toxic chemicals and other factors that can pose a threat to the individual's ability to conceive or bear a child, or to the health of that child. These risks affect both men and women who are active in the fire and rescue services.
The medical background
Various factors commonly or occasionally present in the firefighting environment may:
- Make it difficult for male or female firefighters to conceive a child
- Be linked to birth defects in the children of firefighters of either sex
- Harm the development of a fetus carried by a woman active in fire suppress
- Create a toxic-exposure risk for the nursing infant, transmitted through breast milk
Exposure to extremes of heat has been linked to male infertility, and possibly to birth defects in the offspring of exposed mothers and fathers. Many of the numerous and unpredictably occurring chemicals in the fire environment (or at a hazardous-materials incident) may also adversely affect reproduction. Carbon monoxide exposure may especially affect pregnant women and the developing fetus. One study has shown the offspring of male firefighters to be at increased risk of congenital heart defects. In addition, nursing mothers who are exposed to certain toxins may pass these chemicals on to their infants.
The legal background
Federal law in the U.S., established by the Pregnancy Discrimination Act in 1978 and clarified in 1987 with the Supreme Court's decision in California Federal Savings and Loan, states that employers must do for the pregnant worker at least as much as they do for the worker who is injured off the job. Fire departments therefore must treat the pregnant firefighter at least as well as they do the firefighter who is injured off duty. This much is guaranteed by law; it is not negotiable. [Some state laws may exceed federal requirements; it is beyond the scope of this article to explore the relevant law in each of the 50 states. Most countries other than the United States have more comprehensive coverage.]
Employers may, if they choose, put policies in place that treat the pregnant worker more favorably than the worker who is injured off duty. While providing non-hazardous assignments for pregnant workers may strengthen the demand for light-duty jobs for injured firefighters, the 1987 Supreme Court decision clearly permits the employer to do so in the case of pregnancy even where it chooses not to otherwise.
In 1991, the Supreme Court's decision in Johnson Controls extended women's right to work in hazardous jobs and restricted the employer's right to make decisions about the welfare of the employee's potential offspring. The Court ruled gender-specific "fetal protection policies" that bar fertile women from hazardous jobs are illegal. The determining factor in employment decisions must be the individual's ability to perform the job, not her ability to become pregnant or the fact that she is pregnant, even if the job poses hazards to the developing fetus. Following this decision, policies that require a woman to inform the employer if she becomes pregnant, or that require her to leave active firefighting at a specified point in her pregnancy, will probably be considered illegal.
The Family and Medical Leave Act (FMLA) requires employers to allow workers up to 12 weeks a year of leave (paid, unpaid, or a combination) in order to care for a newborn child, a newly adopted child, or a newly placed foster child; to care for a spouse, child, or parent with a serious health condition; or due to a serious health condition that leaves the employee unable to work. The employer must continue the employee's health care coverage during such leave and must reinstate the employee into his/her previous position, or an equivalent position with equivalent pay and benefits.
Two types of leave or alternate-duty provisions should be in place for firefighters and EMT's: non-hazardous duty, and maternity leave. Parental or family leave provisions more generous than those mandated by the FMLA should also be considered. Parental-leave policy language should refer to the mother's "partner" or "significant other" rather than "spouse" or (the baby's) "father," in order that the marital status of the parents, the identity of the baby's biological father, and the gender of the partner not affect the granting of leave.
Alternate, non-hazardous duty is a special need of workers in hazardous jobs. In providing temporary positions that remove the employee from hazardous exposures, such policies recognize that the activities and work environment of firefighting may make conception difficult, or may be dangerous to the normal development of the fetus. Most parents will not wish to subject their child to such risks, and fire department administrations will not want to risk potential liability for harm that may come to a firefighter or a developing fetus due to failure to put reasonable policies in place. Non-hazardous assignments should be guaranteed for pregnant and nursing firefighters who request it, and also on request for male or female firefighters who are attempting to conceive children.
The type and schedule of non-hazardous duty assignments should encourage, not discourage, the employee to request such assignments. The employee should not suffer a reduction in pay or be denied opportunities for promotion or non-hazardous training while assigned to alternate duty. Fire departments should also take care to educate all employees about the potential reproductive risks of their jobs and the options for reducing these risks.
Maternity leave should be provided to cover the period surrounding labor and delivery, which create medical conditions that usually prevent a woman from being able to work. Under normal conditions, this disability is short-term; six weeks is a common standard, although extensions should be available to cover complicated deliveries or other birth-related medical problems.
In designing a maternity leave policy, the following points should be considered:
- Assure that a woman can not lose her job as a result of becoming pregnant. The arbitrary firing of an employee due to pregnancy is illegal under the Pregnancy Discrimination Act. Nonetheless, it is worth considering what would happen in such cases as as probationary firefighter, or one in recruit school, becoming pregnant, or what would happen if there were extended complications to a pregnancy.
- Regardless of the type of leave the pregnant worker takes, her health care benefits should be maintained, beyond the twelve weeks mandated by FMLA.
- The pregnant employee should not be required to exhaust all other types of leave, such as sick leave and vacation, before being able to use maternity leave. Women of child-bearing years are just as likely as other workers to need their sick leave for reasons of illness; in addition, these women may be penalized at retirement, when they will find themselves with far less sick leave to convert for financial benefit. Under some retirement systems, this can have a long-term impact on the amount of one's pension. Use of sick leave and other forms of leave should be an option for the pregnant employee, not a requirement.
- Pregnant employees should not lose seniority, or eligibility for promotion, due to any paid leaves or transfers to non-hazardous duty assignments.
- The employee should have the option of taking unpaid leave beyond that mandated by the FMLA, particularly if transfer to a non-hazardous duty assignment has not been guaranteed.