firefighters

Cancer is a well-established workplace hazard for firefighters.  This is not only documented in numerous studies, it is recognized by the International Agency for Research on Cancer  (IARC).

But despite that fact, it’s hard for federal fire fighters to get workers compensation for work-related diseases. Those diseases are especially difficult for traditional workers’ compensation systems to adjudicate. Most workers’ compensation systems are designed to address acute injuries (like a broken leg from falling off a ladder), but they are poorly designed to provide benefits for occupational illnesses – especially diseases that don’t occur for many years after exposure. These are called “latency periods” and often cause complicated, unobservable illnesses, such as cancer, decades later.  The burden then falls on the worker to prove that an injury or illness was more likely than not caused by exposures on the job many years or decades before.

Governments can address that problem by passing laws or issuing regulations “presume” that diseases of certain workers are caused by workplace exposure, thereby taking the burden off of the individual worker to prove work-relatedness. Even when filing a claim under a non-adversarial system, such as Federal Employees Compensation Act (FECA), only 9% of cancer claims for federal firefighters are approved, according to the House Committee Report for the Federal Firefighters Fairness Act.

Happily, 49 of 50 states recognize cancer as a workplace hazard for firefighters. Each of these states deem certain cancers—and in some cases other illnesses—presumptively work-related for firefighters when determining eligibility under their workers’ compensation or disability laws.  While the states vary in benefit design and covered conditions, federal firefighters currently do not receive a presumption of causation for any occupational diseases under FECA.  FECA provides workers’ compensation coverage for 3 million federal civilian employees, such as postal workers, nurses, and law enforcement.

Unlike most state workers compensation laws, federal firefighters currently do not receive a presumption of causation for any occupational diseases

But here’s some good news: That inequity between state/local firefighters and their federal brethren was finally addressed in a section of the James M. Inhofe National Defense Authorization Act for 2023 (H.R. 7776) that was signed into law on December 23, 2022.   Deep in that 4,408 page bill is the text of the Federal Firefighters Fairness Act, which provides that federal firefighters who were (1) employed for at least 5 years in that occupation, and (2) contracted one of 14 listed cancers, COPD, or suffered a sudden cardiac event or stroke while, or not later than 24 hours after engaging in fire protection activities, (3) shall have such condition deemed “to be proximately caused by the employment of that employee” for purposes of compensation under FECA.

The legislation also permits the Secretary of Labor to expand the list of diseases eligible for a presumption–without requiring Congress to enact further legislation–based on the “weight of the best available scientific evidence that there is a significant risk to employees in fire protection activities of developing that illness or disease.” To focus these efforts, the Secretary is directed to determine within three years whether breast cancer, gynecological cancer, and rhabdomyolysis should be included as conditions eligible for a presumption.  The public may also petition the Secretary to add health conditions.  DOL must inform federal firefighters submitting a FECA claim about the opportunity to participate in the NIOSH National Firefighter Registry.

A Long Struggle

The effort to secure presumptive disease coverage for federal firefighters has been a project of the International Association of Fire Fighters (IAFF) and other unions going back to 2001 when the Federal Firefighters Fairness Act was first introduced.  IAFF represents many of the firefighters at stationary facilities, such as defense installations, whereas AFGE represents many of the federal firefighters employed by natural resource agencies such as the Forest Service.  Since 2001 legislation has been reintroduced in every Congress, but aside from a sporadic hearing or effort to tack it on other legislation, there had not been a clear-cut pathway to enactment in the past two decades.

This was true for several reasons.  One, it has been more than a decade since the planets aligned to provide firefighters with a motivated House and Senate under Democratic control and a President pushing to enact the legislation.

A second, more technical reason is that the proponents lacked a way to pay for the bill, because this provision involves “mandatory spending,” a complicated procedural term that means that Congress is required to identify “pay for” or an “offset” for the cost of the legislation.

In 2022, these planets aligned, bolstered by greater visibility of firefighters battling ever more destructive wildland fires, and a hearty bipartisan effort by IAFF and other unions:

  • Encouraged by Salud Carbajal (D-CA), the lead sponsor of the House bill (H.R. 2499), Bobby Scott (D-VA), Chairman of the House Education and Labor Committee, moved the bill through markup and to the floor in May of 2022, where it passed with an overwhelmingly bipartisan vote. Pressed by Sen. Carper (D-DE), the Senate Homeland Security and Government Affairs Committee reported a companion bill (S.1116) two weeks later.
  • President Biden urged passage of the Federal Firefighters Fairness Act during a video speech before the National Summit on Fire Prevention and Control in October. He said it would help U.S. firefighters and their families “access critical worker compensation resources, including making sure that several forms of cancer are presumed to be caused by the firefighters’ job.”
  • Given that the net cost of this bill is less than $25 million over 10 years, according the Congressional Budget Office, it is fair to ask why finding a tiny $2.5 million a year in offsets was an issue given the number of gargantuan spending and tax bills that get enacted.

Nevertheless, the price of admission for getting to ride on the defense authorization bill was finding a mandatory spending offset.  The Committee on Education and Labor found a “pay for” by adopting a GAO recommendation to improve program integrity.

Two months after the bill passed the House, it was tacked on to the House-passed Defense Authorization Act, thereby setting everything up for an easy enactment.

Or so you might think.

Republican Opposition

When it comes to Republicans — or getting science-backed legislation through the Senate — nothing is easy.

In reconciling the House and Senate versions of this legislation, the Ranking Member of the Senate Committee on Homeland Security and Government Affairs insisted on a restriction included in the Senate bill, but not present in the final House-passed legislation that was sent to the Senate.

Senator Portman (R-OH) wanted to prohibit the presumption from applying to diseases which are diagnosed more than 10 years after the date of last federal firefighting employment.  This makes zero sense given that mesothelioma and most other cancers can and do have a much longer latency period; however, given the need to secure agreement from Senate Republicans, the question facing unions was whether to take the deal with this flaw or come back in the future and try for a better result in the next Congress.

When it comes to Republicans — or getting science-backed legislation through the Senate — nothing is easy.

Weakening their hand was that this 10-year limit was included in the original House and Senate bills before Democrats stripped it out of the House bill in Committee. Moreover, some states also include a 10-year latency cap.  The Senate version also provided that the addition of any disease by the Secretary of Labor would be subject to veto under the Congressional Review Act.

Pursuing a better deal in the next Congress would require that the planets align yet again. But the results of the mid-term election, which gave House control to the Republicans, surely dims that prospect.

For example, the current Ranking Member of the Education and Labor Committee in the 117th Congress, Virginia Foxx (R-NC), who is seeking the chair of the Committee in the 118th Congress, opposed this legislation. She would rather put the burden back on individual fire-fighters to prove that their cancers are work-related. She argued this bill throws out “crucial program integrity measures” which “protect taxpayers against non-meritorious claims and mismanagement” by allowing for presumptions instead of placing the burden of proof on claimants to prove their illness was work related.

In other words, you can’t trust those lying, cheating workers, even if they risk their lives saving your homes and your lives.

This view overlooks the large body of scientific evidence regarding firefighting and cancer, as well as IARC’s July 2022 report which states that “occupational exposure as a firefighter was classified as carcinogenic to humans on the basis of sufficient evidence for cancer in humans.”

“We thank them for their service, but we should honor them with more than just words.” –– Congressman Robert “Bobby” Scott (D-VA), Chairman of the House Education and Labor Committee

Foxx argued federal firefighters would be getting preferential treatment compared with other federal employees, such as postal workers, with respect to cancer claims.  Nice try, but even those federal employees that Foxx appears to be defending think her claim is bogus. Diverse unions representing postal mail handlers, weather service, and air traffic control system technicians endorsed the legislation.

But the main flaw in Foxx’s “parity” argument is that federal fighters, often work side-by-side with state and local fire fighters, receiving the exact same exposures, but receive reduced eligibility for workers’ compensation for cancers and other diseases compared with their peers engaged in the exact same work.

As Congressman Carbajal explained: “Federal firefighters have been on the front lines in California fighting wildfires as we experience longer and more extreme fire seasons, but their threshold to prove work-related illness is much higher than their state or local counterparts here in California and around the nation.”

While the Ranking Member softened the tone of her opposition by stating that firefighters “deserve our utmost respect and admiration for risking their lives every day,” Chairman Scott was succinct in rebuttal: “We thank them for their service, but we should honor them with more than just words.”

***

*Richard Miller is the former Labor Director for the House Education and Labor Committee. He has also worked for several labor unions and was instrumental in the passage of Energy Employees Occupational Illness Compensation Program Act.

 

One thought on “After Two Decades of Advocacy, Federal Firefighters Expand Federal Workers’ Compensation Protections for Occupational Diseases”
  1. Excellent summation of this terrible lack of reasonable and affordable coverage of occupational diseases for federal firefighters. Good job, as usual, Richard.

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