By Linda Willing
When women were first hired as career firefighters in the late 1970s and early 1980s, the question of how to accommodate pregnant firefighters was not at the top of the list of concerns for most fire departments. There were more immediate issues such as how to develop valid hiring tests, how to find gear that fit women, how to manage station accommodations, and how to prevent or stop harassment.
Very few fire departments had any kind of pregnancy policies back then. Some may have assumed that pregnancy and firefighting were mutually exclusive. Yet just like their male counterparts, many women want to combine having a family with their chosen vocation.
Every fire department that employs women or wants to include women needs to be aware of issues related to pregnancy and firefighting because:
- Women consistently say that poor or absent policies related to pregnancy are one reason they choose to leave the fire service.
- Emergency responders encounter situations and environments that can be potentially harmful to a pregnant woman or the fetus she is carrying.
- Injury or illness resulting from hazardous exposure could potentially incur liability for fire departments and the jurisdictions that support them.
- Younger women in particular assume their right to combine career with family and will not be attracted to organizations that do not accommodate this need.
What the law says
There are several significant laws and court decisions that affect how pregnancy can and should be addressed in the workplace.
The Pregnancy Discrimination Act of 1978 (PDA) is an amendment to Title VII of the 1964 Civil Rights Act. The PDA expands the definition of sex discrimination to include discrimination based on pregnancy and childbirth.
This law states: “Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes … as other persons not so affected but similar in their ability or inability to work.”
The PDA guarantees pregnant women access to benefits already in place for other workers. This law applies to all employers with 15 or more employees, as well as employment agencies and labor organizations.
The Family and Medical Leave Act of 1993 guarantees 12 weeks of unpaid leave per year to employees for the purpose of caring for a newborn, newly adopted, or seriously ill child. This leave can also be used for personal medical conditions or for the care of other family members under some conditions.
Employers must continue health benefits during this leave and must reinstate the worker to the original position or its equivalent upon the employee’s return to work. This law is gender-neutral — men and women must be given equal consideration.
California Federal Savings & Loan v. Guerra U. S. Supreme Court 1987. This decision clarified the intention of the PDA. By 1987, a number of states had passed laws that provided more benefits for pregnant workers than just the minimum guaranteed by the PDA.
In California, one of these laws was challenged as being a violation of the PDA. The U.S. Supreme Court stated in its decision 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.” Therefore, additional benefits specifically for pregnancy are legal.
UAW v. Johnson Controls U.S. Supreme Court 1991. This court decision challenged the concept of fetal protection policies. Although the defendant was a lead battery manufacturer, the principle of the case applies to the fire service as well.
This decision invalidated policies that are strictly to protect fetuses in the workplace when their mothers are otherwise able to work. The court wrote: “Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than the employers who hire those parents….”
This decision means that fire departments cannot force a woman to go to an alternate-duty assignment if she is otherwise able to work just based on fear of harm to the fetus she is carrying.
Implications of the law to the fire service
These four legal points have significance in how every fire department should deal with firefighter pregnancy. Specifically:
- Fire departments must treat pregnant workers at least as well as they treat workers with off-duty injuries or illnesses that affect their ability to work.
- Fire departments may provide more benefits to pregnant workers not offered to others with off-duty injuries or illnesses. The Supreme Court decision of 1987 related to California Federal Savings & Loan makes this crystal clear. The excuse that “we can’t give benefits to pregnant workers because we’d have to do the same for everyone else” is not valid.
- For the most part, pregnant women are not sick. Especially in the first months of pregnancy, they often are able to do everything they did before becoming pregnant, including fighting fire.
- However, there are real risks involved with pregnancy and firefighting, particularly related to high heat exposure in the first trimester. Elevated core body temperature is known to be a serious risk factor for neural tube disorders in fetuses, such as spina bifida.
- Because of the ruling in Johnson Controls, a fire department cannot legally force a woman to leave active duty at any point in a pregnancy if she is otherwise capable of doing the job.
Developing good pregnancy policies
Given the legal and social realities, here are some considerations for developing good pregnancy policies for fire departments.
Guarantee attractive alternate duty assignments for women at any stage of pregnancy. Do not treat pregnant workers as a nuisance or a drain, but as a resource.
With a pregnant firefighter, you have a healthy, skilled person who will be available to work on longer-term projects — perhaps up to a year in duration. Take advantage of that rather than just shuttling the pregnant woman around to one menial task after another.
Understand that the department cannot legally require a pregnant firefighter to leave her assignment if she is physically capable of doing the job. If alternate duty assignments are very unattractive, many women will choose to continue in an active duty role as long as they can.
There are real risks to fetuses from hazardous exposure, especially in the first trimester. A department cannot completely indemnify itself against these risks for the unborn child.
If you find yourself saying, “We can’t afford to accommodate a pregnant firefighter” consider the cost to the department of losing a skilled and experienced firefighter. Consider the cost of possible legal action. Consider whether it is important to you that your department is perceived as fair and family friendly.
Make pregnancy policies clear and accessible. Assume they will be used and plan for that.
Statistics show that the majority of women will become pregnant and have at least one child in their lives. If you want women as firefighters, you will have to accommodate pregnancy in a positive and proactive way.
But it’s not just about pregnancy. Individuals and couples will adopt children. They will raise children within their extended families. They will have issues with fertility. They will have challenges with childcare.
These situations are all normal and should be planned for, not treated as a burden or an emergency. They are issues that apply to both men and women at work.
Family friendly policies are a major way to build loyalty among employees and also to diminish attrition. Such policies make a clear statement about the intention of the organization: that it is truly inclusive, fair, and welcoming of diversity.