Hiring disabled veterans under the ADA

Scenario – We are actively recruiting firefighters and providing a veterans credit for returning veterans. One of the applicants was injured by an IED amputating his leg below the knee. He is wearing a prosthetic and appears to get around OK. Do we have to hire this veteran?

Discussion – It is an admirable position your department has taken by creating an opportunity for returning veterans and providing veterans preference points which are additional points provided to a candidate who is a veteran or a reservist (usually 5 to 10 points) added on to the written score or at the end of the scoring activities AND you seeking out those veterans to belong to your fire department.

The short answer is, you must allow the candidate the opportunity to complete all phases of the testing process to include the Physical Ability Testing to determine if this candidate can complete the essential elements of the job.

Many times a department will look at the candidate and their perceived disabilities and determine they are unable to do the job. A disqualified candidate may retain an attorney and file a discrimination lawsuit against your department under the Americans with Discrimination Act (ADA) and will probably prevail. Under the current 2009 version of the American with Disabilities Act (42 U.S.C. 12102(2)(A)(B)(C)) for issues arising after January 2009, disabilities are defined as a physical or mental impairment that substantially limits a major life activity, or a "record" of such a condition. The ADA also covers an individual who has been "regarded as" having a disability, which means that s/he was subjected to an allegedly discriminatory action because of an impairment (unless the impairment was minor and transitory). A major life activity can include: walking, speaking, breathing, and hearing, seeing, thinking, sitting and standing among many other activities. As the law is generally silent to what defines a major life activity, the courts, in their many discrimination cases, continue to develop these lists.

Your department probably has other firefighters or possible firefighter candidates who may fall under the provisions of the ADA although you may not actually realize it. For example, those individuals who have difficulty reading or completing written testing or writing a report may have Dyslexia. Dyslexia is defined as a general term for disorders that involve difficulty in learning to read or interpret words, letters, and other symbols, but that do not affect general intelligence. Under the ADA your department must make “reasonable accommodations” by extending testing times, providing a reader for the candidate or other reasonable accommodation. The candidate or your current firefighter must bring medical documentation when making a Dyslexia claim.

What about your current employees who become ill or injured on the job and return to work? Again, your department may be required to make a reasonable accommodation for that returning employee which may involve: a long term light duty assignment, change in job description and reassignment, special equipment to enable the firefighter to perform the essential functions of the job and other reasonable accommodations. Other medical conditions that may be protected include ADHD, Pregnancy, Alcoholism or Drug addiction or certain Mental illnesses. See http://www.eeoc.gov/ for additional information related to disabilities.

The EEOC has stated that, in general, "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." Therefore, most courts have held that an employer could not be liable for failing to provide an accommodation if the employee never asked for anything. Employers should be aware that some courts have said that if the employer knows about the disability and has reason to know of the need for accommodation, it may have an obligation to provide the accommodation -- even without an express request.

The question that every fire department employer should ask when confronting a situation where an employee has an impairment that substantially limits a life activity is: does the individual with this disability have the background required for the job and can the employee perform the essential functions of the job, either, without any accommodation, or with a reasonable accommodation?  The Employer should further inquire if the qualification standard screens out the individual because of their disability; is it "job-related and consistent with business necessity? We should also determine whether continued performance under a reasonable accommodation standard by evaluating this question: does the individual poses a direct threat to themselves or others? A direct threat is when an individual with a disability poses a significant risk of substantial harm to him/herself or others, and there is not a reasonable accommodation that would lower the risk of harm below that level.

Finally, we are seeing an uptick in the number of firefighters and especially returning veterans with Post Traumatic Stress Disorder (PTSD). Many PTSD events are acquired on the job and the employer must recognize those symptoms and have a referral system in place such as an EAP program or a referral program to a qualified mental health practitioner. A number of departments have implemented pre-employment psychiatric screening for their new hire employees. Those pre-screening tests look for compatibility of the firefighter in the department and problem areas that may keep the candidate from becoming an employee. The military veteran candidates may be elevated on the PTSD factors and may be unnecessarily screened out from employment. Be especially candid with your testing Psychologist on those issues and what your department is seeking in a qualified candidate.

ADA are three letters that may have major legal implications for your department. Please take the time to understand the law and how it will affect your department in the hiring process and especially when providing an equal opportunity for your returning military veterans.

John K. Murphy JD, MS, PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a Deputy Fire Chief and Chief Training Officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011 and is a licensed Physician’s Assistant in Washington State. Mr. Murphy was a US Navy Corpsman proudly serving with the US Marines in Vietnam. He is a frequent Legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio, curator of the Fire Engineering Policy Bank and a national speaker on fire service legal issues.

For more information on this topic please contact me at 206-940-6502 or at john@murphylawgroup.org