When a firefighter develops health problems that may affect his or her ability to do the job, two forces collide. On one hand, the employer has the right to remove the employee from duty to protect the employee, co-workers and the public. On the other, the employee has the right under the Americans with Disabilities Act to continue working if possible. A recent Maryland case illustrates this conundrum.

Donald Ridgely was hired as a firefighter by the Montgomery County Department of Fire and Rescue Services on Oct. 6, 1980. Over the years, he was promoted several times and in 1990 obtained the rank of fire-rescue captain.

His duties as a captain included supervising shifts at the fire station, responding to incidents, assuming command at the incident scene, supervising fire investigations, repairing or overseeing repairs to the station, conducting employee training and evaluations, driving rescue vehicles, and providing administrative support. The position required periods of strenuous physical effort, such as scaling ladders while carrying 60 to 65 pounds of equipment, operating heavy equipment, and being exposed to extreme environments.

To ascertain their fitness for duty, firefighters were required to undergo annual medical examinations performed by doctors employed by Montgomery County's Fire and Rescue Occupational Medical Services. Following a fitness exam, the examining doctor would prepare a health status report that stated whether the employee could perform full duties, disclosed any medical impairment, and indicated any work restrictions considered appropriate. Based on the report, the department would make the final decision about fitness and work restrictions. Ordinarily, the department accepted the recommendations of OMS.

In February 1997, Ridgely began falling asleep during the day. He would fall asleep while driving and performing sedentary activities, and he once fell asleep while driving his riding lawn mower. A few months later, he noticed that his knees would buckle and his eyes would flutter when he laughed. He discussed these problems with his personal physician, who recommended sleep studies. A sleep study in the fall of 1997 revealed that he had narcolepsy, which is characterized by recurrent and uncontrollable brief episodes of sleep.

He was then referred to Dr. Marc Raphaelson, a neurologist, for additional care. Ridgely did not notify anyone at the department of his condition or these developments. In February 1998, Raphaelson diagnosed Ridgely with narcolepsy and related cataplexy, which is a sudden loss of muscle power following a strong emotional stimulus, and prescribed several medications. Ridgely immediately reported his diagnosis and the medications to the department, and he submitted a medical evaluation of work status form signed by Raphaelson stating that he was qualified “to work in full duty status, without physical restriction.”

Ridgely continued to see Raphaelson over the next several years, and he passed his annual department fitness examinations in 1998, 1999, 2000 and 2001. On April 6, 2002, Dr. Francis J. Von Feldt, an employee of OMS, performed Ridgely's annual fitness examination for the first time. After the examination, Von Feldt submitted an inquiry to Raphaelson asking him to provide a summary report of Ridgely's narcolepsy and related cataplexy and to make recommendations about medical work restrictions. Von Feldt also completed a health status report, placing Ridgely on “no duty” status pending receipt of Raphaelson's report.

Raphaelson reported that Ridgely had responded well to medication for his narcolepsy. He said that Ridgely took higher doses of his medication during very long work shifts, but that there had been no episodes of sleep initiation interfering with work or leisure.

On May 1, 2002, Von Feldt performed a follow-up examination and concluded that Ridgely should remain on “no duty” status. Von Feldt also noted in a May 6, 2002, memo that Ridgely's symptoms implicated NFPA 1582, Medical Requirements for Firefighters and Information for Fire Department Physicians. Under paragraph 3-13.3(b) of that standard, Ridgely's condition was a “Category B Medical Condition,” analogous to a “seizure disorder.” Based on its severity or degree, such a condition could prevent a person from performing as a member in the training or emergency operational environment by presenting a significant risk to the safety and health of the person or others. Von Feldt concluded on that basis that Ridgely shouldn't be allowed to operate county vehicles or work on scaffolding, ladders, roofs, or any other unprotected areas above ground or floor level.

On May 14, 2002, Von Feldt examined Ridgely again and recommended that he be placed on light duty, which would still restrict him from working at above floor-level heights and from operating county vehicles. Ridgely began working on light duty at the end of May 2002 and continued to receive his regular pay.

On May 21, 2002, Raphaelson completed a medical evaluation of work status form for Ridgely, stating that he was qualified to work on full-duty status. Nonetheless, on July 11, 2002, Dr. Douglas Robinson, another OMS physician, wrote to the fire chief and recommended that Ridgely remain on light-duty status. Robinson opined that Ridgely's chronic medical condition was “not acceptable” under the NFPA standard.

On Oct. 30, 2002, the fire chief wrote to Ridgely, informing him that in light of the OMS recommendation, “You are no longer medically qualified to perform your job as a Fire/Rescue Captain.” Ridgely was informed that he could apply for a service-connected disability retirement or non-service — connected disability retirement. He also was told that he could resign, apply for an early or normal retirement if eligible, or seek alternative placement in a different county job that he was medically able to perform. He was further informed that if he didn't choose any of these options, the department would begin the process to terminate his employment.

Despite this letter, Ridgely was not forced to retire and continued working on light-duty status. On Nov. 21, 2002, he filed a charge of discrimination with the Montgomery County Office of Human Rights, alleging discrimination by the county in placing him on light-duty status. On Feb. 7, 2003, he filed suit against the county in a case which eventually became Ridgely v. Montgomery County, No. 580, Court of Special Appeals of Maryland (2005), alleging disability discrimination. Specifically, he claimed that the county was “regarding [him] as … disab[led]” because of his narcolepsy and related cataplexy and was unlawfully discriminating against him on that basis.

While the case was pending, Raphaelson continued to maintain that Ridgely was capable of safe operation of heavy vehicles and of safe performance of duties while working at heights. Also in the meantime, Dr. Craig Thorne, an independent contractor working for OMS, performed a follow-up medical examination of Ridgely. Thorne concluded that Ridgely's narcolepsy and related cataplexy were well-controlled and that he was medically fit for full duty. Thereafter, Von Feldt informed the department that he concluded that Ridgely was “medically acceptable with qualifications.” Von Feldt recommended a transition period of three months, during which Ridgely would avoid working at heights and driving county vehicles. Ridgely returned to full-duty status on Oct. 5, 2003.

The county moved for summary judgment dismissing Ridgely's case, arguing that he couldn't show he was regarded as disabled by the county. Specifically, the county argued that Ridgely wasn't regarded as disabled because the county placed him in another position and only regarded him as unable to work in one job — that of firefighter — and not as unable to engage in the major life activity of working. The county further argued that it was justified in maintaining high fitness standards for its firefighters, as necessary to protect the public, and that it had acted prudently to assess whether Ridgely was posing a direct threat to himself or others by continuing in his position at full duty.

Ridgely countered by arguing that:

1. The county regarded him as substantially limited in the major life activities of working, maintaining consciousness, maintaining motor control and maintaining balance due to his narcolepsy and cataplexy, and hence regarded him as disabled.

2. He was qualified for his position and was not a direct threat because he had not experienced any incidents of cataplexy or narcolepsy while on the job.

3. He was prohibited from serving in the position of fire-rescue captain due to his narcolepsy and cataplexy.

Maryland law, which parallels the ADA, defines disability as “a physical or mental impairment that substantially limits one or more of an individual's major life activities, a record of having such an impairment, being associated with an individual with a disability or being regarded as having such an impairment.” To succeed on his claim, Ridgely had to show that:

1. He had a disability under the ADA;

2. Notwithstanding the disability, he was otherwise qualified for the employment or benefit with or without “reasonable accommodation”; and

3. He was excluded from the employment or benefit solely on the basis of his disability.

It was undisputed that Ridgely's narcolepsy and cataplexy constituted “impairments” within the meaning of the law. Major life activities have been defined as “those activities that are of central importance to daily life.” They're activities that “the average person in the general population can perform with little or no difficulty.” Such activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

Ridgely argued that the major life activities affected by his impairments were working, maintaining consciousness, maintaining motor control and maintaining balance. He further argued that the county “regarded him as” disabled because it mistakenly believed that his impairments substantially limited one or more of his major life activities.

The court noted that it must distinguish between a situation in which an individual is “regarded as disabled within the meaning of the ADA” and a situation in which an employer has merely deemed an individual “unqualified for a particular job because of limiting physical [or mental] impairment,” as the latter isn't actionable under ADA. When an employer has valid requirements that employees must meet, and the employer fails to hire or keep an employee who doesn't meet these requirements, such a situation “does not establish a claim that [the employer] regards [the person who does not meet the requirements] as being substantially limited in [a] major life activity.”

The court said that Ridgely seemed to argue that simply because he suffered an adverse employment decision, he had presented evidence sufficient to satisfy the “regarded as” requirement. The court found this argument to be insufficient. It stated that to meet the “regarded as” test, an individual must put forth adequate evidence for a reasonable trier of fact to conclude that the employer perceived the employee as having an impairment that, if it existed as perceived by the employer, would have substantially limited one or more of the employee's major life activities. The court said that Ridgely's contentions that the county regarded him as being substantially limited in the major life activities of working, maintaining consciousness, maintaining motor control and maintaining balance undercut his threshold argument that the “regarded as” test only required a showing that he suffered an adverse employment decision because of his impairment.

The court noted that other than the county's conclusion that Ridgely didn't meet the threshold requirements for fire-rescue captain under the NFPA standard, Ridgely had failed to make a prima facie showing that the county regarded him as being substantially limited in the major life activities of maintaining consciousness, balance and motor control.

Ridgely also argued that the county regarded him as “disabled from a class of jobs or a broad range of jobs in various classes” and thus regarded him as substantially limited in the major life activity of working. While the court agreed that being unfit for the position of firefighter does amount to being unfit for a “broad range of jobs in various classes” or a “class of jobs,” it held that the county's deeming Ridgely unfit for the position of firefighter did not, as a matter of law, establish that the county regarded him as substantially limited in the major life activity of working.

The court concluded that the summary judgment motion dismissing Ridgely's case was correctly granted because he failed to satisfy his burden of producing evidence from which a trier of fact could reasonably infer that the county regarded his narcolepsy and cataplexy as substantially limiting any of his asserted major life activities.

Therefore, Ridgely could not satisfy the first prong of the prima facie case for disability discrimination — that he was regarded by the county as having a disability.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500.