Using "Light Duty" Lightly – and Properly

Employers often use the term “light duty” in a variety of employment contexts from job creation for occupationally injured employees to job duty modification to accommodate employee medical restrictions. However, employers should exercise care in their policies and practices regarding light duty jobs or assignments. Otherwise, they may find themselves unintentionally establishing unfavorable precedent for potential reasonable accommodations under the Americans with Disabilities Act (ADA). For instance, if an employer maintains two regular “light duty” positions at all times (such as an office position, etc.), a transfer to such an open position is likely required as a reasonable accommodation for a disabled employee under the ADA. By contrast, if the employer does not maintain regular “light duty” positions (i.e. create on an ad hoc basis – discussed below) there would never be an open light duty position for a disabled employee to transfer into and the ADA does not require an employer to create a position as a reasonable accommodation.

Below is some basic guidance to help Employers utilize a light duty program while avoiding potentially unfavorable consequences under the ADA.

Employers should use the term “light duty” in the worker’s comp context. Light duty should be viewed by management as a temporary assignment that enables an occupationally injured employee to return to work during recovery (before reaching his/her Maximum Medical Improvement). The primary purpose of a light duty program should be to reduce worker’s comp costs because it mitigates employee’s lost earnings. In contrast, the term “accommodation” should be used only in the ADA context.
Employers should create light duty position/assignments on an ad hoc basis rather than having a permanent slate of light duty positions (do not utilize permanent/regular light duty positions).
Employers should limit the creation of light duty positions/assignments to employees who suffered an occupational injury or illness only.
Employers should make all light duty positions/assignments temporary (for example, 30 or 60 days). Remember the purpose of the light duty should be to enable the worker to return to work while recovering.
Employers should have a written light duty policy.

Other issues that employers should keep in mind regarding light duty policies are:

Under the FMLA, light duty must be “voluntary” and “uncoerced.”
Light duty time does not count against FMLA’s 12 weeks.
Policies and performance expectations continue to apply in light duty jobs.
Ensure that employees are medically cleared to work light duty assignment.
Absent undue hardship (which is a high standard), employers generally are required to redistribute marginal job functions as a reasonable accommodations under ADA.

A light duty program can have many benefits, including reduced worker’s comp costs because it mitigates employee’s lost earnings, helps reduce turnover and the employer gets at least some benefit from work. However, if light duty jobs/assignments are used in the wrong context, the potential benefits can be quickly outweighed by the drawbacks.

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