By David
D. Schein, President & General Counsel, Claremont Management Group, Inc.
Small businesses, especially those with at least 15
employees, must be careful of the “light duty” trap. Business with at least 15
employees are covered by the Americans with Disabilities Act, (“ADA”) http://www.eeoc.gov/facts/fs-ada.html. Some states may
have laws that make this applicable to even smaller businesses.
The start of the trap is simple enough. An employee,
“Pat,” has a strained back and files a Workers’ Compensation (“WC”) claim. Pat
is off work for a period of weeks. Smart business people know that WC rates are
based on the claims experience of their business. So, the WC claims representative
calls the manager of the business and indicates that Pat has been cleared for
light duty. This sounds like a great opportunity to get the employee back to
work and limit the WC claims cost. Pat reports for work, but indicates that due
to doctor’s limitations, Pat can only do paperwork, not the usual shop or
driver position. The manager is still OK with this as it stops the indemnity
payments by the WC insurer. And, after all, how long can the employee stay on
light duty?
The manager discovers that Pat can stay on light duty
just about forever. After a few months without a release for “full duty,” and
flooded with complaints from other employees, the manager tells Pat that the
light duty position is no longer available. Pat might then file a complaint
with the Equal Employment Opportunity Commission alleging a violation of the
ADA due to failure to reasonably accommodate Pat’s disability. The EEOC takes
the position that if the business could accommodate Pat’s light duty for
months, then obviously, it can handle having a permanent light duty position
for Pat.
The tip is to avoid this trap is to never put an injured employee
back to work on light duty unless they are just about ready to return to work
on full duty. There is an approach called "work hardening." The idea
is when an employee has been off for a while, it is helpful to ease them back
into the workforce. [See Article]
The suggested maximum time for this program while on the
job is two weeks. So, unless the doctor says Pat is about to go to full duty
within two weeks, the manager does not bend to the WC carrier’s request to
start light duty. Further, work hardening on the job should be a full-time work
schedule, with just reduced work load as the employee builds to full duty.
