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Helping Temporarily Disabled Employees Return to Work

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The goal of light duty programs isn't to squeeze every last ounce of productivity from your workers. Assuming they are healthy enough, the goal is to prevent them from disengaging entirely from work. An unfortunate side effect of temporary disability is that it can sometimes retard the individual's ability to get back in the swing of things once they are fully back on their feet again.

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Employee participation in light duty programs is voluntary. If an employee has sought leave for a serious condition under the Family and Medical Leave Act(FMLA), for example, an existing light duty program does not prevent the employee from taking full leave. Also, if an employee decides to participate in a light duty program, time spent in that program does not reduce the employee's FMLA leave quota.

Worksite Injuries and the ADA

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What does it mean when an employee is "regarded as" having an injury that limits his or her abilities on the job?

The EEOC issued a notice* giving its views on this and other aspects of employee protection under the ADA. Here is an excerpt from that notice.

Question: When does a person with an occupational injury have a disability under the "regarded as" portion of the ADA definition?

Answer: A person with an occupational injury has a disability under the "regarded as" portion of the ADA definition if he or she has:

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1. An impairment that does not substantially limit a major life activity but is treated by an employer as if it were substantially limiting,

2. An impairment that substantially limits a major life activity because of the attitude of others towards the impairment, or

3. No impairment but is treated as having a substantially limiting impairment.

Example: An employee has an occupational injury that has resulted in a temporary back impairment that does not substantially limit a major life activity. However, the employer views her as not being able to lift more than a few pounds and refuses to allow her to return to her position. The employer regards her as having an impairment that substantially limits the major life activity of lifting. The employee has a disability as defined by the ADA.

*EEOC issued notice No. 915.002

Participation Incentives

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However, if you create a light duty job compatible with the employee's performance restrictions, then offer it to the employee and he or she declines to accept it, FMLA guidelines do allow you to curtail the employee's existing paid time off benefits.

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If you don't have a light duty program, an employee who is on temporary disability leave might ask you to create such a program. In general, you are under no obligation to do so. The exception to this might be if there is a need to offer a "reasonable accommodation" for a disabled employee pursuant to the Americans with Disabilities Act (ADA). You might also face that requirement with respect to pregnant employees. If you do create a light duty program, however, you can impose a limit on the duration of an employee's participation.

Regarding pregnant employees, earlier this year the Equal Employment Opportunity Commission (EEOC) issued new guidelines under the Pregnancy Discrimination Act. For the first time, the EEOC took the view that employers must offer pregnant employees temporary light duty assignments with work restrictions if they have the same policy for non-pregnant employees.

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Work-Related Requirement?

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One important unsettled question regarding light duty programs is this: Can you limit these programs to employees who have temporary disabilities which resulted from work-related accidents?

The EEOC has maintained that employers cannot limit light duty programs to work-related injury cases, but that position hasn't been sustained in all legal jurisdictions.

However, whether or not the disabling condition is work-related, employers are still obliged to make "reasonable accommodations" to employees who qualify under the ADA. (See right-hand box for the relationship between workplace injuries and the ADA.) If you are persuaded that light duty, return-to-full capacity programs just make business sense, you would have no reason to limit them.

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Following are some key tips and insights about light duty, return-to-work programs:

• Program duration: These are supposed to be temporary, and you can set time limits. Leave yourself some flexibility by stating that the program ordinarily does not last longer than a specified time period, but that in some circumstances an extension might be possible.

• Have a detailed plan: Before allowing an employee into a light duty plan, be sure you have laid out a set of milestones that will keep the employee on track to resume all the duties of his or her former position.

• Don't outsource everything: Group disability insurance carriers generally have their own return-to-work programs and will take charge of everything if you let them. It's better to stay involved and agree at the outset on a logical set of shared responsibilities.

• Work closely with the medical team: The employee's physician can provide critical input in designing the light duty program. But be sure the physician has a clear understanding of the precise nature of the demands of the job.

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