Earlier this week, I had the privilege of presenting on the FMLA and ADA reasonable accommodations at CUPA-HR‘s annual conference with my friend, Stan Kulesa from 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 FMLA and ADA. Now that the EEOC has instructed 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 with higher ed professionals 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 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 FMLA leave, the time in this light duty position cannot count against the employee’s FMLA allotment. 29 C.F.R. 825.207(e)
2. 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. (EEOC Guidance, question 29) 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 they are ready to perform their 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. Such a policy might state, for example: “Temporary work does not normally extend beyond “x” days. If the employee has not sufficiently recovered to return to the usual and customary position within this period, then we will review the employee’s restrictions and engage the employee in a discussion about how we might help them perform their job.”
3. Light Duty and the ADA (Part II): There is a bit of an ongoing debate between EEOC and the rest of the world over whether employers can limit light duty to those who have suffered on the job injuries. EEOC has taken the position (in EEOC v. Supervalu and in similar ADA cases) 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 exclusively to workplace injuries (especially where there are longtime collective bargaining agreements in place), and I see no reason to change now, so long as employers keep in mind your obligations to otherwise provide reasonable accommodations under the ADA. Just beware of the risk that EEOC will take an adverse position to yours and you may be required to defend the practice.
4. 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. 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 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.