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ATLANTA LABOR & EMPLOYMENT

April 24, 2013

Light Duty, A Heavy Topic

Best Practices for Light-Duty/Transitional Work Policies Under the ADA, FMLA, and Workers’ Compensation

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Three Overlapping Laws

ADA

Workers’ Compensation

FMLA

Light Duty

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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).

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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.

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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

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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.

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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

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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”

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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

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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.

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Light Duty Position Variations…

There are at least four significant types of light duty assignments:

1.Temporary position

2.Restructuring of employee’s usual position

3.Reassignment to a vacant existing job

4.Modified work day

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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

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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?

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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

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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

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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

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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.

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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”

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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?

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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?

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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?

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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?

GREENBERG TRAURIG, LLP ATTORNEYS AT LAW WWW.GTLAW.COM ©2012. All rights reserved.

ATLANTA LABOR & EMPLOYMENT

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