Light-duty work can bring heavy questions for employers, employees
This article provides answers to five of the most common questions about light duty.Ed Zalewski is an editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. For more information, visit www.jjkeller.com and www.prospera.com. Whether an organization offers light-duty work as a way to reduce workers’ compensation costs or as a way to keep injured employees productive, chances are you (as an employer or as an employee) have questions about its implementation. This article provides answers to five of the most common questions about light duty. Question: Are employers required to offer light-duty work? Answer: Generally, no. The employer and its workers’ compensation insurance carrier might prefer to return the employee to some form of work in an effort to reduce costs, but this is not a requirement. In fact, the Family and Medical Leave Act (FMLA) allows employees to refuse light-duty work and retain their FMLA leave rights. If an employee on FMLA refuses light-duty work, though, the refusal may result in a loss of workers’ compensation benefits. However, if an employee has a disability under the Americans with Disabilities Act (ADA) and requests to return to work in a light-duty capacity as an accommodation, the employer may need to consider such a request. Under the ADA, the employer does not have to create a new position or excuse the employee from performing essential job functions, but having the employer offer available light-duty work may allow the employee to continue working rather than taking time off. Q: Must employers pay an exempt employee the same wages when he or she is on light duty? A: An exempt employee must be paid the same agreed-upon salary every week, without regard to the number of days or hours worked. However, the employer may change the amount of that salary based on expected future absences for partial disability. The salary would still have to be at least $455 per week for the employee to qualify for exempt status. But as long as the salary is adjusted in advance based on expected duties, rather than being changed “after the fact” based on the hours worked, it may be treated much like any other salary adjustment imposed for a change in expected duties (such as an exempt employee who changes to part-time status). An alternate option is a temporary conversion to nonexempt status for the duration of recovery. If the employee’s graduated return to full duty will involve increasing hours (e.g., 20 hours the first week, then 25 hours, then 30 hours, then 35 hours), or if there is a potential for unexpected absences (for follow-up appointments, possible regression, etc.), then it may be easier for the employer to pay the employee by the hour. The employee could then be returned to exempt status upon resuming full duties. Q: If an employer offers light duty for workers’ compensation, should it offer light duty to employees with non-work-related injuries or illnesses? A: According to the Equal Employment Opportunity Commission, which enforces the employment provisions of the Americans with Disabilities Act, ADA-covered employers that provide already-existing light-duty positions to employees with disabilities caused by work-related injuries must also do so for employees with non-work-related disabilities, if needed as a reasonable accommodation. However, employers may create light-duty positions for employees with work-related injuries, but need not do so for employees with disabilities not caused by work-related injuries. This is because the ADA does not require employers to create positions as a form of reasonable accommodation. Q: Is there a limit to the number of light-duty days an employee may take? A: There is no legal restriction on the number of days an employee can be on light duty. Generally, light-duty work should be transitional or relatively short term, since the intent is to keep the employee busy (and not collecting workers’ compensation) while recovering. In some cases, an employee will reach maximum medical improvement, but is still physically unable to return to the former position. In that situation, the employer would normally follow the provisions of the ADA — that is, consider possible accommodations, including transfer to alternative available positions. If the employee cannot be accommodated, and no other positions are available, termination may be appropriate. Q: Must an employer offer overtime to individuals on light duty? A: No. Employers generally do not have an obligation to provide the opportunity for overtime to an employee on light duty, even if the employee’s regular job normally involved overtime.