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CHAPTER 9 – AMERICANS WITH DISABILITIES ACT

Article 9-4

FL – CITY OF PORT ST. LUCIE – AMERICANS WITH DISABILITIES SETTLEMENT - TTY SERVICES FOR 911 CALLS - MEDICAL RECORDS MUST BE SEPARATE FROM PERSONNEL FILES

On August 10, 2009, the City of St. Lucie, FL entered into a settlement agreement with the U.S. Department of Justice (Civil Rights Division – Disabilities Rights Section) that focused on access to public buildings and direct access via TTY (text telephone) or computer-to-telephone 911 services: http://www.usdoj.gov/crt/ (search Port St. Lucie).

Three particular items of interest to the fire service:

• TTY: The review included compliance with Title II of the Americans With Disabilities Act:
  "to provide direct access via TTY (text telephone) or computer-to- telephone emergency services, including 9-1-1 services, for persons who use TTY’s and computer modems, 2 C.F.R. Sec. 35.162." (Page 2 of Settlement Agreement.)
• "The City has equipped each police station or substation with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls." (Paragraph 16 of Settlement Agreement.)
• Job Applicants: "[The City] will not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations or inquiries may be made and only if required of all applicants for the position." (Paragraph 24 of the Settlement Agreement.)
• Medical Records Filed Separate From Personnel Files: "[The City] will maintain any employee’s medical records separate from personnel files and keep them confidential." (Paragraph 24 of the Settlement Agreement.)

Legal Lessons Learned: Review the Settlement Agreement and implement ADA corrective action plans.

Article 9-3

CALIFORNIA – CAPTAIN HAD HIS LEG AMPUTATED BELOW THE KNEE IN A WORK-RELATED ACCIDENT AND NOW WEARS A PROSTHESIS - FD PROPERLY REFUSED TO TRANFER HIM FROM A TRAINING ASSIGNMENT BACK TO A FIRE STATION

On March 29, 2007, the California Court of Appeals held in Gregory Malais v. Los Angeles City Fire Department, 2007 Cal. App. Unpub. LEXIS 2618, that the captain’s lawsuit was properly dismissed since he did not suffer an “adverse employment decision” by being assigned upon return to work to an In-Service Training position, rather than as a platoon captain at a fire station. The FD refused to reassign him to a fire station because it believed there was an unacceptable risk to the captain, other firefighters, and the public for his working platoon duty with a prosthetic leg.

While the captain maintains he is qualified to work as a platoon commander at a fire station, and prefers the atmosphere of working as part of a team of firefighters, under the California “Fair Employment and Housing Act” and case decisions there is no law which “supports the proposition that assignment to a less-preferred position alone constitutes an adverse employment action.” (Emphasis by the Court.)

Captain Malais joined the FD in 1980, and was promoted to “Captain II” in 2000. In 2002, he was injured in a work-related incident [court does not provide any specific facts] and as a result his right legal was amputated below the knee. Under workers comp he received $10,200 for disability compensation, and returned to work on light duty in April 2003, and in October 2003 he was released to full duty work on “special assignment” as an In-Service training captain.

On the FD, the rank of “Captain II” may be assigned to two platoon classes: (1) platoon duty, or (2) special duty. There are about 38 special duty captains, who generally work a 40 hour-week schedule, including training positions. Platoon captains are assigned to fire stations and work 24-hour days, with alternating time off.

Both platoon captains and special duty captains receive the same rate of pay, both are eligible to take promotion exam for Battalion Chief (Captain Malais has not taken the promotion test and does not want to be promoted) and are both eligible for significant overtime work.

Both platoon captains and special duty captains are eligible for overtime pay. While Captain Malais believes there is more overtime available as a platoon captain, special duty captains can become certified to safety watch status, which permits them to act as inspectors at public events and work substantial overtime (Captain Malais has not sought to be certified, and has turned down some overtime opportunities).

Under California law, not every change in the change of conditions constitutes an adverse employment action. The court cited a prior decision, “Workplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.”

Legal Lessons Learned: The court recognized that the responsibility of the FD to protect fellow firefighters and the public outweighs the individual job concerns of the firefighter with prosthesis.

Article 9-2

MASSACHUSETTS - FIREFIGHTER APPLICANT WITH HEARING LOSS – MAY NOT WEAR HEARING AIDS DURING PREEMPLOYMENT PHYSICAL

On Dec. 7, 2006, in Christopher Carleton v. Commonwealth, the Supreme Judicial Court of Mass., 447 Mass. 791, 858 N.E. 258, 2006 Mass. LEXIS 690, held that the City of Marlborough properly denied employment to Mr. Carelton, who had applied for a career firefighter position. Although he had been a part-time firefighter and used hearing aids when getting his FF I card, under state regulations and NFPA 1582, he was not allowed him to wear hearing aids in order to pass the preemployment physical.

Carleton has worn hearing aids since he was a child. In 1997, Carleton became a junior firefighter at age 17 with the Northborough FD. In 1998, he became a licensed EMT, and worked for two private ambulance companies. In Oct. 2003 he became a 911 dispatcher. He wore hearing aids and there was never a problem regarding his performing his duties.

He also completed FF I course in 2000, and worked until 2002 as an “on call” firefighter for the town of Stow. During the FF I course, he participated in structural fire training, and wore his hearing aids. He had no problems.

On April 29, 2000, Carleton sat for the civil service exam for the career firefighter position with the City of Marlborough. He scored 99 out 100 possible points, and his name was near the top of the hiring list. In April, 2001, the city informed him they would be hiring two career firefighters, and he would be required to pass a preemployment physical concerning the statewide minimum health and safety standards for firefighters and police officers.

His hearing test was conducted without hearing aids, and his hearing loss was classified “Category A” – a medical condition considered incompatible with the performance of the essential job functions of a career firefighter. The statewide allowable “pure tone threshold” is 40 dB deficit on one ear, and he tested at 75 dB deficit in his left ear, and 35 dB deficit in his right ear. (The testing nurse allowed him to take the test a second time, wearing his hearing aids, which he apparently also failed; he was also informed that the statewide standard does not use of hearing aids during the test.)

Carleton filed an appeal to the Commonwealth’s Human Resources Division, and the Division retained Dr. James Ryan, medical director of Boston Medical Center’s Occupational and Environmental Medicine Department to review the hearing test results. Dr. Ryan reported that the test was accurate and Carleton should not be hired, and wrote “Hearing aids do not permit accurate localization of the direction of sounds; can be swamped by loud background noise; may be subject to failure due to electronic malfunction or weak batteries during an emergency situation; and may also act as radio receivers, picking up interference from nearby radio transmitters.” Dr. Ryan concluded, “Loss of effective hearing in such as situation … would place the life and safety of the fire fighter and the public in danger.”

On Feb. 25, 2002, Carleton filed a complaint with the Mass. Commission Against Discrimination. He also retained a hearing specialist, Dr. David Citron, who refitted his hearing aids and sent them to the manufacturer for repair. On June 3, 2002, Dr. Citron reported that Carleton could “perform the duties of a fire fighter with no difficulties.”

In October, 2002, the city announced they were also hiring six “permanent intermittent firefighters” and he would be considered for one of those positions. Carleton took the medical exam on October 7, 2002, and once again he was not allowed to wear his hearing aids. He again failed to meet the statewide standards.

He filed a lawsuit, but the trial court granted summary judgment for the city. The Supreme Judicial Court agreed., finding that the statewide standards follow NFPA 1582, Medical requirements For Firefighters. “The NFPA is the preeminent fire code and standards organization in the United States, and NFPA Document 1582 is ‘a standard that has been adopted by fire fighting organizations throughout the United States.’ Sicard v. Sioux City, 950 F. Supp. 1420, 1425 (N.D. Iowa 1996).’ ”

The court stated that Mass. in 1995 formed a panel of experts to review the statewide standards to ensure they complied with the latest medical information and the Americans with Disabilities Act. The panel recommended that medical deficiencies be classified as either Category A (candidates and current firefighters are deemed unfit for service), and Category B (only severe deficiencies would prohibit employment). In 1997, after consulting fire fighter unions and the Municipal Association, new statewide standards were adopted. Carleton was tested to these new standards, which do not allow wearing of hearing aids during the test, and he was assigned a Category A.

In 2001, Mass. again considered revisions to the standards, and a new panel of experts, including experts in hearing. The experts report stated that in compliance with the Americans with Disabilities Act, it was important to adopt standards which address the “essential functions of the job” of firefighter. The panel agreed that “firefighters are more likely to experience problems with hearing aids during their performance of their duties at the fire scene. A hearing aid can fail due to being soaked or from excessive perspiration, preventing the wearer from performing a critical job function during the failure period. It is possible that failure could occur during a circumstance that is life threatening. Police officers are not likely to encounter these types of conditions while performing their normal work duties.”

As a result, in 2003 Mass. adopted new statewide standards that allow police officers to wear hearing aids to take the hearing tests. Consistent with NFPA 1582, it prohibits firefighters to use hearing aids to meet the minimum standards. The new hearing standard was also modified so that candidates who receive a Category A, and still want appointment, may now be given a full audiological examination. There is also new threshold: “hearing deficit in pur tone thresholds in both ears, the deficit in each ear averaging 35 dB HL or worse, at 500, 1000, 2000 and 3000 Hz.” Unfortunately for Carleton, he would fail this revised standard without wearing hearing aids.

The court concluded, “Because he is unable to establish that he is a ‘qualified handicapped’ person under [ Mass. law], Carleton’s constitutional claim must fail as well.”

Legal Lessons Learned: A disabled firefighter candidate must still be able to perform the essential functions of the job.

Article 9-1

ADA – PROMOTION EXAMS – THREE COLUMBUS FIREFIGHTERS WITH ATTENTION DEFICIT HYPERACTIVITY DISORDER (ADHD) NOT ENTITLED TO ACCOMMODATIONS - MEDICINE HAS CORRECTED PROBLEM AND NOT “DISABELED”

On July 6, 2006, in Knapp, et al. v. City of Columbus, 2006 U.S. App. Lexis 17081 (unpublished opinion), a 3-judge panel of the U.S. Court of Appeals for the 6 th Circuit held that three firefighters with ADHD were not “disabled” under the Americans With Disabilities Act since they took Ritalin, since this medicine was effective in allowing them to perform their jobs and other major life activities.

One of the three firefighters is a Columbus Fire Lieutenant, and in December 1998 he requested accommodations from the city’s Civil Service Commission when taking the Captain’s exam. He requested a quieter test site, more time to complete the test, and a “verbal explanation of the test’s direction.” This was denied. He repeated the accommodation requests for the 2001 and 2003 examinations, which were also denied. He filed a complaint with the EEOC, which issued him a “right to sue” letter. He filed his personal lawsuit in federal court, and the city took his deposition. He admitted that he takes Ritalin to treat his ADHD symptoms, and testified that the medicine “gets [him] through daily.” He also admitted that when he takes the medicine, the difference is like “night and day.”

The second firefighter requested accommodations for the 1999 Lieutenant’s promotion, including more time to take the examination, “visual aids” and a quieter test environment, and “someone to possibly assist with oral questions.” The city’s Civil Service Commission denied his request, and he failed the 1999 promotion exam. He later failed the 2001 promotion. He admitted in his deposition that he takes Ritalin daily, and that it controls his symptoms “[f]airly well.” He admitted that while taking Ritalin, he can organize and concentrate, and is never hyperactive. While he still has a problem sitting still for more than 30 minutes, he admits that he has maintained his EMT-B certification, including classroom continuing education exams.

The third firefighter is currently a Columbus Fire Lieutenant. He had requested accommodations for the 1995 lieutenant’s exam. The city’s Civil Service Commission granted him extra time to take the written exam, and was allowed to take the exam alone to reduce distractions from other test takers. In 1999, he requested similar accommodations for the Captain’s exam, and was denied. He failed that test, and also the 2001 examination. In his deposition, he admitted he was “doing fairly well [but his] medication wears off after a few hours.” He sometimes forgoes taking the Ritalin when his job duties or family life does not require it.

The U.S. District Judge granted the city’s motion for summary judgment, finding that the firefighters were not “disabled” under the ADA. The U.S. Court of Appeals agreed. The Court wrote that the plaintiffs must demonstrate that their ADHD condition “substantially limits their ability to learn.” The court cited the landmark U.S. Supreme Court decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), where an employee with carpal tunnel was found to not be disabled. The U.S. Supreme Court held that claimants must prove they are “unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.”

The U.S. Court of Appeals held that in light of the deposition testimony of each of the three firefighters that when they take their medicine they can perform major life activities, “we conclude that Plaintiffs have failed to establish that ADHD substantially limits their ability to learn.”

Legal Lessons Learned:

When firefighters or other employees seek accommodations for promotion exams, the employer may require proof that they are “disabled,” including disclosure of medications taken and the effect of the medications.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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