Light Duty, A Heavy Topic Best Practices for Light- Duty/Transitional Work Policies Under the ADA, FMLA, and Workers’ Compensation April 24, 2013

Three Overlapping Laws Light Duty

ONE CARDINAL RULE The ADA, the FMLA, and Workers’ Compensation statutes confer different rights on employees, and different obligations on employers. Therefore, compliance with one statute does not at all guarantee compliance with the other(s).

A LITTLE BACKGROUND…. ADA at a glance The Americans with Disabilities Act (“ADA”) prohibits covered employers from discriminating against employees and applicants who are “qualified individuals with a disability.” Employers cannot discriminate against an individual based upon his or her association with a disabled person (i.e., if the employee has a child or spouse afflicted with a disability). Employers with 15 or more employees must, in most cases, comply with ADA. A qualified individual with a disability – protected by the ADA – is a person who can perform the essential functions of his or her job with our without a reasonable accommodation. Employers must provide reasonable accommodations to qualified individuals with a disability.

A LITTLE BACKGROUND…. FMLA at a glance The Family Medical Leave Act (“FMLA”) establishes a minimum standard for leave, much as other federal laws set standards for child labor, minimum wage, safety and health, or pension and welfare benefits. Employers with 50 or more full-time employees must, in most cases, comply with FMLA. FMLA does not cover part-time or seasonal employees working fewer than 1,250 hours per year. Eligible employees may be entitled to 12 weeks of unpaid leave during any 12 month period for: The birth of a child and to care for the child The placement of a child with the employee for adoption or foster care To care for a spouse, son or daughter, or parent who has a serious health condition A serious health condition that makes the employee unable to perform the functions of the employee’s job

A LITTLE BACKGROUND…. Workers’ Compensation at a glance State workers’ compensation laws seek to compensate employees for workplace injuries while minimizing employer liability. Most state workers’ compensation laws protect both injured workers and their dependents from the costs associated with occupational injury, disease or death. Employers must meet the insurance requirements of the law or they may be subject to fines. Employers who pay into the state Workers’ Compensation fund or who are self-insured are normally not subject to civil liability for workplace injuries or death unless its employees can establish an intentional tort on the part of the employer.

What Constitutes the Light Duty Overlap? FMLA: only serious health conditions of the employee Not pregnancy or serious health conditions of family members ADA: actual disabilities Not record of disability or regarded as disabled Workers’ Comp: injuries/illnesses precluding full return to work Not a short-term injury resulting in complete recovery

What do we mean by “light duty”? Temporary or permanent work that is physically or mentally less demanding than normal job duties. Other common uses of the term: Excusing certain job functions “Office” jobs v. “field” jobs Other permanent positions generally considered “easier”

Are Light Duty Positions Required? No.... But remember…. ADA – Required to be offered if it is a reasonable accommodation that does not create an undue hardship on the employer FMLA – Employee covered by the FMLA cannot be required to take a light duty job in lieu of remaining on FMLA leave Workers’ Compensation – Ought to be offered if available as it may eliminate the employee’s entitlement to the wage replacement benefit

Does the employee have to accept light duty? Under Workers’ Comp? Employee who refuses medically appropriate light duty work will lose benefits unless the refusal was justified. Under ADA? Employee must accept light duty as long as it is a reasonable accommodation and is effective in allowing the disabled employee to return to work or continue working. Under FMLA? No. Employer is not permitted to require an employee entitled to FMLA leave to take a light duty position in lieu of FMLA leave of absence.

Light Duty Position Variations… There are at least four significant types of light duty assignments: Temporary position Restructuring of employee’s usual position Reassignment to a vacant existing job Modified work day

Benefits of Light Duty Positions Employer gets at least some benefit from work Reduce potential liability under the ADA Increase morale Increase productivity by reducing absences Can help reduce turnover The longer an employee is out, the less likely he is to ever return Can cut off or control workers’ compensation costs Disability is much more than workers’ compensation costs Nationally, there were 110 million lost workdays in 2008 70 million of the lost workdays were from injuries

Drawbacks to Light Duty Positions Risk of re-injury to the employee Inefficiencies arising from new position Administrative hassle to add a new job Might require you to keep an employee you’d rather see go Any others?

How to Implement Light Duty Positions Permanent slate of light duty positions Pros One-time set-up Defined role in the organization Readily accessible job descriptions Cons Cannot be reserved for occupational injuries Can encourage malingering

How to Implement Light Duty Positions Ad hoc Light Duty Positions Pros Can be tailored to specific business and individual needs Can be reserved for occupational injury only Can be disregarded except when filled Cons Takes time to create a position and job description Limited time to take advantage of Workers’ Comp limits Ad hoc positions may have poorly defined performance expectations and metrics

Legal Principles to Keep in Mind ADA does not require employers to create new positions ADA does not require “bumping” incumbent employees Under FMLA, light duty must be “voluntary” and “uncoerced” Light duty time does not count against FMLA’s 12 weeks Policies and performance expectations continue to apply in light duty jobs

Legal Principles to Keep in Mind Workers’ Compensation Employers can cut off or reduce workers’ comp liability by offering light duty. Check your state Workers’ Compensation Statute for all the procedural steps required.

Best Practices Create light duty positions on an ad hoc basis Limit creation of light duty positions to occupational injury or illness Make all light duty positions temporary Best to have a defined time period (e.g., 90 days) Consider creating a Light Duty Offer form that clearly states the time limitations on the position; the employee should sign the form to certify that she accepts a light duty position and understands the assignment is temporary (and thus she has no entitlement to the position) Have a written job description for each light duty position Any other job modifications should be handled as reasonable accommodations or FMLA leave – not “light duty”

What do you think? If an employer reserves light duty positions for employees with occupational injuries, does the ADA require it to consider reassigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation?

What do you think? Does an employer have a duty under the FMLA to return an employee on leave to his job if that employee cannot perform essential functions of the position?

What do you think? ABC Widgets, Inc. (“ABC”) creates light duty positions for employees when they are occupationally injured if they are unable to perform one or more of their regular job duties. Ann learns she is pregnant. Her doctor placed her on bed rest for two weeks, and, later, placed her on light duty restrictions. She requests that ABC create a light duty position for her as a reasonable accommodation. ABC denies Ann’s request because she has not been injured on the job. The company’s modified work policy denies an accommodation of light duty work for non-work related injuries. Has ABC violated the ADA?

What do you think? Nurse Betty suffered a work-related injury to her neck and right shoulder while on the job at County Hospital. Betty’s job requires she be able to light 50 pounds. However, her physician limited her to occasional lifting of no more than 20 pounds due to her injury. She was initially awarded a light duty assignment through the hospital’s light duty program. While on light duty, she was also granted intermittent FMLA leave. After Nurse Betty exhausted her FMLA leave and still could not perform the essential functions of her job, County Hospital refused to reinstate Nurse Betty to its light duty program. Did County Hospital violate Nurse Betty’s FMLA rights when it removed her from the light duty program and placed her on continuous FMLA leave?

QUESTIONS