Public perception and protecting your department


CarolinaFireJournal -

05/06/2014 -

As firefighters, officers and chiefs, the emergency services certainly care what the public thinks. What does “politics” mean in the fire service? It means that sometimes we did not provide a service; but instead, we catered to the wants of the citizens in our communities! Some say that the job of the fire chief is like being a chameleon where one must transition from Incident Commander to politician and back again.

If you like being a fire chief or rescue chief, caring what the public thinks is not something you can dismiss or you too will be dismissed from your career sooner than you would like. Just who is the public about whom we speak? Your public depends on the nature of your department, specifically, if you run a career department, combination or volunteer department. Remember, your public is not only the citizens living outside the walls of the station; it could be those tax payers riding your apparatus every day. Are you getting the picture that the job of the fire chief or rescue chief is getting harder and harder?

As a fire chief or rescue chief, how do you enforce policies that protect your public and the department, but some of your members or employees do not like? Remember you have two groups to cater to, those inside the department and the powers that be outside the department walls. When you pass or implement a new policy, then you have to enforce it or why even take the time to do the policy. When the Department of Labor (DOL) walks in, they are going to look at your policies, and then they are going to review how you do business. Let’s say you have a policy on drugs and alcohol addressing that your members and employees cannot drink and drive to calls or department functions. With that said, let’s look at the reality. We have all been on a few scenes where one of your volunteers came to you and said, “Bobby smells like alcohol.” This poses the question, “What now?” If you turn your head, you just broke policy and approved the consumption of alcohol by your members and employees. After the call, your volunteers are standing in the bay talking and you, the fire chief, walk up and they get quiet, what do you think was being discussed?

You will find out when you have someone hurt on the job, you send him/her to the hospital; he/she receives a drug test and tests positive. You, the fire chief, are sitting at your desk, the results are handed to you and you remember the policy of Drug Testing and you fire him/her, because he/she broke policy. On his/her way home, one of your other employees or members calls him/her and reminds him/her of “Bobby.” I hope you see where this is going. Yes, you have a policy, but it is worthless, because you failed to enforce it in all situations and if the employee gets an attorney, you will put them back to work with back pay.

Drug and Alcohol in Emergency Services
What does your public think about it? In 2013 in North Carolina, the headlines read: “Firefighter has been charged with DWI.” The public responded by saying:

“This offense is particularly egregious when it involves a civil servant. Someone who sees firsthand the result of alcohol related incidents. Would there be an outpouring of support for him had he caused an accident that took a life? This was not a mistake, it was a violation of the law that he knowingly committed. For that there are consequences. Yes, civil servants are held to a higher standard. That is understood and agreed to by any person taking an oath to serve others....” Source: http://wwaytv3.com

How many of you knew that in 2013, North Carolina passed a law, G.S. 20-138.2B, which prohibits anyone from driving EMS vehicles, fire fighting vehicles, or other emergency services vehicles while alcohol remains in the person’s body. Ladies and Gentlemen, that is zero tolerance enforced by state law!

When the law passed, there were a few television stations that interviewed citizens in North Carolina and asked them what they thought about the newly adopted law. They all said it was a good idea, but most of them said they thought it was common sense and, rightfully, did not understand why the emergency services needed a law telling them not to drink and drive a fire truck.

To protect your departments, you need to make sure that you have good policies addressing drug and alcohol use. Having a policy is only part of the equation. You also need to know how to make sure you enforce the policy, in the middle of the night, when that volunteer walks up and says, “Bobby smells like alcohol.”

Drug-Free Workplace Act of 1988
This federal law was established to ensure that any company awarded federal contracts or federal grants must follow the act and perform drug testing. Now, how many of you reading this article just developed that sick feeling in the pit of your stomach, because you accepted that Assistant to Firefighter Grant (AFG) and/or Fire Prevention and Safety Grant (FP&S) and/or Staffing for Adequate Fire and Emergency Response Grant (SAFER) and you do not do drug testing? Can you be penalized for not doing it?

Yes and the following could happen, if you are reviewed:

  • The grant may be suspended or terminated.
  • Grantee may be prohibited from receiving, or participating in, any future contracts or grants awarded by any Federal agency.
  • You may even have to pay it all back.

Negligent Hiring
Duty Defined: An employer has a duty to use “reasonable care” to select employees and contractors who are safe and competent.

Imagine the following scenario:

Scenario
As a fire chief, you are responding to a call or standing in the front yard of a structure fire working on “Strategies and Tactics” and you hear over the radio that one of your members/employees has wrecked your apparatus or their personal vehicle coming to the call. Imagine further that, after the fact, an investigation uncovers that the driver of your apparatus had a DWI in the past three years and/or had been terminated from a job for drug abuse, but that is news to you as chief. Because you do not have a Drug and Alcohol policy or worst yet, you have one, but do not test new applicants.

Companies have lost millions over issues like the above. Because you are legally obligated to make sure that the volunteer members and/or employees you allow to respond are people with high morals who will not hurt the citizens you protect.

Under a Negligent Hiring claim, a department or squad can be sued if an employee or volunteer:

  • Injures or harms another employee or volunteer or member of the public, and the department
  • Or squad could or should have foreseen a problem, but did not do a drug test of the new employee or volunteer before hiring them.

Negligent Retention
Duty Defined: Employer failed to discharge an employee who management knew, or should have known, had a problem or behavior that could cause harm to someone else.

Did you know that if you hear about “Bobby” smelling like alcohol and you did not enforce company policy or you do not react to it, you may have just opened yourself and your department up to a lawsuit? Like it or not, employers, and not employees themselves, will often be held liable for the conduct of their employees or volunteer members. When it comes down to it, the courts are set up to make the victim whole again and you and your department have deeper pockets than your employees most of the time. The courts also look at employers for liability, as they should be in control of the workplace and their employees’ behaviors while on the job.

We know that it is very hard to terminate and/or throw “Bobby” off the department, because you and “Bobby” have been friends for 30 years or his father is your board of director president, but remember the ugly word “Politics.” Do not let this be the time that you allow it in the department; protect the department and your pockets.

Health, Safety and Statistics
If you study the reasons why employers should drug and alcohol test their employees, you will learn the statistics on how many people are hurt each year because of drug and alcohol in their systems. What we love about the fire service is our members or employees start rumors and people believe them. How many times have you heard, “Not one person has received a ticket because of marijuana in their system?”

Well, we hate to bust that rumor, but approximately 1.5 million people are arrested for driving under the influence of drugs and/or alcohol each year. Did you know that the average person arrested for drunk driving has driven drunk almost 100 times without getting caught before their DUI? How about one person dies in an alcohol related accident every 45 minutes!

What is the largest age range of drunk drivers? How about 18-35! What is the age range of your firefighters? That was the normal age range of our firefighters when we were chiefs. Do you know that seven percent of workers report drinking alcohol during the workday, one in 10 employees report heavy alcohol use, and nine percent are current illicit drug users?

The numbers do not lie. Protecting your department and community is more than fighting fire or responding to a medical call!

Department Funding
There are Federal, state and local laws that try to force you to protect your employees and the public from bad people, by way of your hiring practices and from hiring people who are not good for the rest of the people around them. The cost is too high to turn your head or read this article and think, “I need to do something,” but then walk away. When you think about it, you will pay $350,000 plus for an engine or $700,000 plus for a ladder, but you will not pay $35 for a drug test to protect yourself, your members, your department and your citizens.

One of the staff members of MSFES recently joked about him purchasing a ladder truck for $700,000 in his career as a fire chief and the purpose of the apparatus was for ISO/NCRRS points and decorating the Christmas tree at the local library once a year. If you do the math, that apparatus will last around 15-20 years, so that is about $50,000 per year. If we can spend that, should we not spend $35.00 on a drug test and/or $25.00 for a background check to protect your whole department?

Legal Protection Information
It is very difficult to write articles that educate fire departments and rescue squads on ways to protect the departments or squads, without educating people who want to harm your department or squad. We have presented a variety of good reasons why you should do drug and alcohol testing in your departments. There are other issues that were not addressed in this article as they could potentially highlight areas of risk or liability for your department or squad. If you would like more information about those issues or if you are willing to protect your department or squad by implementing a policy and beginning appropriate testing, we are here to talk to your chief officers. We do not educate firefighters on legal subjects surrounding the issues covered in these articles, but if you are a chief officer, the staff of Management Solutions for Emergency Services (MSFES) will answer your questions for free and help you navigate the legal issues of building a correct policy and implementing a testing program that takes into consideration the governing North Carolina state laws and federal laws such as, Americans with Disabilities Act (ADA) and Americans with Disabilities Act Amendment Act (ADAAA), Family and Medical Leave Act (FLMA), Drug-Free Workplace Act and other laws that protect employees and their rights.

MSFES is a team of retired fire chiefs, licensed attorneys and CPAs that have teamed together to provide emergency service departments and squads with administrative risk reduction services that once only big companies and departments could afford. Working with and endorsed by VFIS, MSFES is bringing those services to any department, big or small, for the lowest prices possible, to help reduce the legal and day-to-day administrative risks faced by and placed upon today’s departments.

MSFES may be reached at: www.msfes.net or call 828-409-1638 for help on understanding the legalities related to background checks and drug testing. Our human resources personnel and attorneys will help you through the procedures.
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Issue 33.4 | Spring 2019

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