Jeff Nowak recently presented on the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) reasonable accommodations at the College and University Professional Association for Human Resources (CUPA-HR)’s 2014 annual conference with Stan Kulesa from The Standard. In Nowak’s SHRM article, “Don’t Be Tripped Up by Light Duty Obligations under the FMLA and ADA,” he discusses the concept of light duty and how it is connected to the FMLA and the ADA. Nowak outlines three topics that elaborate on the subject: light duty and the FMLA, Light Duty and the ADA (in a two-part analysis), and light duty and pregnancy. The EEOC’s July 2014 Pregnancy Discrimination Guidance mandates that employers must offer light duty assignments to pregnant employees in a wide range of circumstances. When an employee requests FMLA leave, the employer can offer a light duty assignment instead to keep the employee working; the employee, however, can still choose FMLA leave if they see fit. If the employee cannot perform his or her current job because of a health condition, the employee certainly has the right to take leave. However, if the employee prefers light duty, the time spent on light duty cannot count against the employee’s FMLA allotment. In order to comply with the new guidance, employers can create light duty positions on a temporary basis. However, due to FMLA and ADA restrictions, Nowak suggests a “temporary” light duty policy to read something like this,
“’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.’”
In contrast to popular practice, the EEOC now believes that an employer cannot restrict light duty to only those who have suffered on the job injuries because it has the effect of discriminating against individuals with disabilities. If your company only offers light duty work to employees injured on the job, be prepared to defend your policy against the EEOC. So, regardless of whether pregnant employees are defined as “disabled” under the ADA, employers must now provide reasonable accommodations that include light duty and leaves of absence. Nowak advises that employers review their policies as soon as possible to avoid discrimination lawsuits.
Author: Dana Millio