FACT OR FICTION: Permanent light duty is an ADA reasonable accommodation

Thumbnail image for ffiction.pngThat’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Today, I’m speaking at the EEOC EXCEL Conference in Denver, CO. It’s an incredible honor, given that this is the first year that the conference has not only catered to public sector employers, but also those in the private sector.

(Well, at least, that’s what someone at yesterday’s networking reception, so I’m going with it).

My topic is the so-called “Bermuda Triangle of Leave”: ADA, FMLA and Workers Compensation. One of the topics I’ll discuss is light duty. So, for those of you who cannot attend, let’s make this post a topical two-part QATQQ.

  1. May an employer force an employee taking leave under the Family and Medical Leave Act for his own serious health condition to work light duty in lieu? Nope. The FMLA permits eligible employees to take up to 12 workweeks of leave. Leave is leave. Period. There is no such thing as light duty under the FMLA. Even if an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.
  2. Can an employer be stuck providing permanent light duty as a reasonable accommodation under the ADA? Well, probably not. This is best addressed with an example. Let’s say that an employee’s job is to stack heavy boxes. A year into his employment, the employee suffers a devastating wrist injury. If the employee is offered temporary light duty work as a reasonable accommodation, and the employer has made it known that permanent light duty is not an option, then the employee cannot keep that light-duty job permanently. However, if the employer knows that the wrist injury is permanent and the employer places the employee into what could reasonably be viewed as a permanent light-duty position, then the employee may have effectively changed the essential functions of the employee’s position (lifting boxes) to light duty (something other than lifting boxes). Consequently, the employer may have to keep that employee in the light duty position.