Light Duty Policy “Lite” or Avoiding the ADA Trap
Employers are not required to provide their employees with light duty work assignments in the event of employees’ injuries, illnesses or disabilities. This is true under both federal statutes (i.e., ADA and FMLA) and Michigan statutes (i.e., WDCA and PWDCRA).
However, employers often wish to create light duty positions for employees who are receiving workers’ compensation benefits due to work-related injuries. By providing such light duty assignments, work can be performed that is of value to the employer and, at the same time, the expense of workers’ compensation benefits being received by injured workers can be cut or entirely eliminated.
Keeping a number of designated light duty assignments “at the ready” for such use creates problems for an employer under the ADA. Even though the ADA does not require an employer to “create” a permanent position within the capabilities of a disabled employee as a means of providing an accommodation, the EEOC has found that an employer who has designated light duty positions that are unfilled may need to offer those positions as an accommodation to employees who suffer from non-work related disabilities.
The answer to this conundrum is a “lite” light duty policy: the Company does not maintain regular or permanent light duty positions but will consider the need to place employees in temporary light duty positions on an “as needed” and “case-by-case” basis. In this manner, the employer can create temporary light duty positions for disabled employees on workers’ compensation leaves while excluding non-job related disabled employees from these positions.
As the sample policy statement indicates, an employer should not establish regular or permanent light duty positions. Instead, when the proper circumstance arises (i.e., the need to have some employee temporarily perform what can be characterized as light duty work), then the employer can direct an employee on a workers’ compensation leave to report to work for this assigned job assuming, of course, that the assigned work is within that employee’s medically mandated job restrictions. This directive, if ignored, places the employee at considerable risk loss of employment as well as loss of workers’ compensation benefits unless the employee is on FMLA leave.
An employee on FMLA leave may decline an employer’s offer of light duty work and remain on FMLA leave. This is true even if the FMLA leave is contemporaneous with a workers’ compensation leave.