Not So Light Duty: The Obligation To Accommodate Employees Injured at WorkFirst Quarter 2014 – Articles Staying Well Within the Law
When an employee is injured on the job and files a workers compensation claim, the goal of the employer is to get that person back to work so the workers compensation costs do not continue to rise. Many times, the employee gets a doctor’s note authorizing a return to work but only on “light duty.” This usually means some restriction is placed on the employee’s activity (e.g. cannot lift 10 pounds). Although this gets the employee back, this assignment to light duty is often abused by employees who try to take advantage and stretch their light duty assignment to last weeks, months, or (as I have seen on occasion) years. This abuse can be dealt with.
In an ideal world, light duty positions should be used as staging areas where injured employees can recuperate and return to their full-time jobs while still being productive. Light duty positions, however, should not be intended to be a permanent post, but a temporary way station or bridge between an inability to work due to injury and a return to full employment status; they are intended as a shield to protect the temporarily disabled, and not as a sword by which a person who is otherwise unqualified for the position can demand a permanent posting.
The New Jersey Law Against Discrimination (NJLAD) does not require that an employer create an indefinite light duty position for a permanently disabled employee if the employee’s disability, absent a reasonable accommodation, renders him otherwise unqualified for a full-time, full-duty position. Thus, consistent with the NJLAD, an employer may reasonably limit light duty assignments to those employees whose disabilities are both temporary and not inconsistent with the duties of the light duty assignment, and, conversely, the availability of light duty assignments for temporarily disabled employees does not give rise to any additional obligation on the part of the employer to assign indefinitely a permanently disabled employee to an otherwise restricted light duty assignment.
In sum, an employer may, consistent with the NJLAD, terminate the employment of an employee who, after consideration of available reasonable accommodations, nevertheless is no longer able to perform the essential functions of his job. However, the employer is not obliged to do so. An employer may, on either a temporary or long-term basis, seek to retain disabled employees in either modified or different job postings.
The following are some guidelines employers should use when dealing with light duty situations and dealing with the employee’s Health Care Provider (HCP):
- Send the HCP an accurate list of the employee’s duties, including essential job functions and physical requirements.
- An accurate, up-to-date job description prepared is the gold standard to establish essential job functions.
- Information from the HCP will set the parameters of the time frame of the light duty accommodation.
- Do not be satisfied with repeated notes stating that the employee will be “re-examined in two weeks.”
- Always obtain updated information from the employee’s HCP concerning the employee’s expected return to work date and any restrictions upon the employee’s return to work. It is permissible to request clarification or additional information.
Most importantly, I strongly recommend implementing a light duty policy that will address all of the issues and concerns that swirl around the concept of “light duty,” including the setting of some temporal limits on how long a stint of light duty can last.