In yesterday’s Advisor, we looked at tricky issue of interactions between the FMLA, ADA, and workers’ compensation. Today, we cover the delicate question of light-duty work, and we explore a unique FMLA problem-solver.
The question of light-duty or alternate work requirements bedevils HR managers faced with complying with three laws at once. Here are tips:
Light Duty and Workers’ Compensation
In some states, employers are required to offer light-duty assignments to workers’ compensation claimants who are recovered to some extent, but are not well enough to be able to perform their regular duties, if it is possible and does not cause unreasonable hardship.
In other states, offering light-duty or alternate work is not required. Many employers, however, choose to offer light or alternate duty in order to get the employee back to work in some capacity.
Light Duty and the FMLA
Generally, employers are not required to offer light duty, although in any situation where an employee coming off FMLA leave is physically unable to perform the essential functions of his or her old job, the employer should look very carefully to see whether the employee is entitled to some sort of accommodation (including, but not limited to, light duty) under the ADA.
Employers can transfer employees on intermittent leave to a light-duty position in order to better accommodate the need for leave. However, in such a case, the employer must offer the employee on light duty his or her normal rate of pay. Time on light duty does not count against the 12-week leave entitlement.
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Light Duty and the ADA
An employer may provide an existing light-duty assignment to an employee as a form of reasonable accommodation as long as it does not impose an undue hardship on the employer. The ADA does not require that an employer create a light-duty position that did not exist before the request for accommodation.
As an alternative, an employer may reallocate marginal job functions that the employee cannot perform because of a disability. The employer may also assign additional marginal job functions to a disabled employee to compensate for marginal job functions that were taken away.
Does the employee have to accept light duty?
In most states, an employee who refuses medically appropriate light-duty work will lose his or her workers’ compensation benefits unless, in the opinion of the workers’ compensation commission, the refusal was justified.
If an employee is covered by the ADA and is not covered by FMLA or workers’ compensation (e.g., he or she has a non-work-related disability and has not worked the requisite 1,250 hours for FMLA leave), the 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 to continue working.
If the employee refuses a reasonable accommodation, he or she may not be “qualified” to stay on the job and may not have the protection of the ADA.
Because FMLA requires that a worker be restored to the same or equivalent position (identical in terms of salary, benefits, privileges, status, and working conditions) upon return from leave, an employer may not compel a worker out on both workers’ compensation and FMLA to accept light-duty work, or fire the person because he or she will not do so.
The bottom line is this: Whenever an employee requests leave under FMLA, ADA, or workers’ compensation, conduct a quick review to see whether either (or both) of the other laws might also apply. Analyze how each law applies to the situation to make sure all requirements are met.
FMLA interactions and hassles—they just won’t go away, will they? And, now, of course, there are all the new FMLA responsibilities—like military leave and reinstatement. It’s enough to make your head spin.
It’s an almost overwhelming task to keep up with the FMLA, let alone comply with the far-reaching changes. You need a helping hand. Good news! BLR’s editors have gone the extra mile to get your comprehensive compliance guide ready.
A whirlwind of changes has hit the FMLA—are you ready to comply? Order BLR’s comprehensive guidebook and find out what you need to do. You’ll get expert FMLA guidance, forms, and concrete examples. Find out more.
BLR’s recently updated Family and Medical Leave Act Compliance Guide simplifies the frustrating and confusing complexities of the FMLA, so you know exactly how to comply in every situation.
It contains practical answers to all the FMLA questions you are asking—and the ones you haven’t thought of but should be asking.
The Family and Medical Leave Act Compliance Guide includes:
- Leave law overview
- All the new forms and advice on how to use them
- Practical guidance on implementing all aspects of the new rules
- Analysis of federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
Plus
- A quarterly newsletter and updates to make sure you stay in compliance as any changes come about
Get more information or order your copy of the Family and Medical Leave Act Compliance Guide.
Other Recent Articles on Leave Policy/Compliance
FMLA-FLSA-ERISA: Another Bermuda Triangle?
The 3-Legged Dance of FMLA, PDA, and COBRA
DOL Agrees: With Intermittent Leave, Enough Is Enough
Hard-Core Approach to Intermittent FMLA Gets Results