Don't Be Tripped Up by Light-Duty Obligations Under the FMLA and ADA: A Discussion of Employer Best Practices

By Jeff Nowak

I had the privilege of presenting on reasonable accommodations at last year’s CUPA-HR annual conference with The Standard.

We spent much of our time discussing the delicate topic of light duty and how it intersects with — and creates employer obligations under — both the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). Now that the Equal Employment Opportunity Commission (EEOC) has instructed employers in its July 2014 pregnancy discrimination guidance that employers must offer light-duty opportunities to pregnant employees in a wide range of circumstances, the concept of light duty presents new and additional risks for employer liability.

As we discussed during our presentation, employers should keep the following best practices in mind about light duty:

1. Light Duty and the FMLA: When an employee seeks FMLA leave, an employer can offer a light-duty assignment as an alternative (to keep the employee working), but the employee has the right to take FMLA leave instead. The right to take FMLA leave is absolute — if the employee cannot perform the current job because of a serious health condition, the employee has the right to take leave. Conversely, if the employee elects a light-duty job in lieu of an FMLA leave, the time in this light-duty position cannot count against the employee’s FMLA allotment.
2. Light Duty and Pregnancy: In its July 2014 guidance on pregnancy discrimination, the EEOC takes the position (for the first time) that the Pregnancy Discrimination Act (PDA) requires employers to offer temporary light-duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions.
3. Light Duty and the ADA (Part I): An employer is not required to create light-duty work, but if it does, it can create this position on a temporary basis. After all, the aim of light-duty work is to gradually transition an employee back into his/her position, or to allow the employee a modest amount of time to heal until he or she is ready to perform his or her job duties again.But how long is “temporary?” Of course, there is no magic number here. That said, I don’t have any concerns with a policy that gives guidance as to the length of a light-duty role but clearly leaves the door open to the ADA’s interactive process so that the employer meets its obligations under the law.
4. Light Duty and the ADA (Part II): There is a bit of an on-going debate between the EEOC and the rest of the world over whether employers can limit light duty to those who have suffered on-the-job injuries. The EEOC has taken the position that an employer cannot restrict light duty in such a way because it has the effect of discriminating against individuals with disabilities. Many employers traditionally have offered light-duty assignments exclusively to employees with workplace injuries (especially where there are longtime collective bargaining agreements in place). Employers will need to be aware of the risk that the EEOC will take an adverse position to yours and you may be required to defend the practice.

The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the ADA.

Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their light-duty practices — as well as their accommodation policies — as soon as possible to minimize exposure to pregnancy discrimination claims.

This post is excerpted from the original post on FMLA Insights and is reprinted with permission from Jeff Nowak.

About guest blogger Jeff Nowak

Jeff Nowak serves as co-chair of the labor and employment practice group at Chicago-based law firm Franczek Radelet, and he also serves as author of the FMLA Insights blog (www.fmlainsights.com). Jeff represents private and public sector management clients in all areas of labor and employment law. He has extensive experience dealing with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), including counseling clients on compliance with FMLA regulations, conducting FMLA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff frequently speaks on a wide range of employment topics, and recently presented with The Standard at the annual conference of the College and University Professional Association for Human Resources (CUPA-HR).