Light duty is not FMLA leave

Many workplace situations or events call into play multiple employment laws. Such is the case, for example, when an employee suffers a workplace injury or illness. The employee could likely be entitled to benefits under the state workers’ compensation provisions, so he or she would receive some income replacement and be treated for the condition. The condition might also be a serious one, entitling the employee to protections under the FMLA.

Many employers have light, or modified, duty for employees who suffer occupational or other injuries or illnesses. Employers are not, however, required to provide light duty, and employees are not generally mandated to accept light duty. Getting an employee back to work as soon as tolerable in any capacity, however, generally benefits both employer and employee.

An employee whose condition qualifies for FMLA protections can turn down an offer of light duty and still retain those FMLA protections. In doing so, he or she might risk losing other benefits, such as those provided by workers’ compensation provisions.

While an employee might accept an offer of light duty, employers should not consider the time spent working light duty as FMLA leave. Any time an employee is working, no matter where, no matter the tasks, time spent performing that work would not be FMLA leave. This is true even if the employee volunteers to take light duty.

If an employee on FMLA leave voluntarily accepts a light duty assignment, he or she retains rights under FMLA to return to the same or an equivalent position held prior to the start of the leave for a cumulative period of up to 12 workweeks. This “cumulative period” would be measured by the time designated as FMLA leave for the workers’ compensation leave of absence and the time employed in a light duty assignment.

Employees who exhaust their 12 weeks of FMLA leave and cannot return to their position might need modified work, but the they have no right to restoration to another position, including a modified one, under the FMLA.

While employers are not generally mandated to have light duty, allowing an employee to an existing light duty job might be required as a reasonable accommodation under the Americans with Disabilities Act (ADA).

Indeed, even outside of workers’ compensation and the FMLA, light duty work might be considered a reasonable accommodation under the ADA. In the case of an employee with a serious health condition under FMLA who is also a qualified individual with a disability under ADA, requirements from both laws (or all three if workers’ compensation is involved) must be observed and applied in a manner that assures the most beneficial rights and protection to the employee.

Light duty should not be confused with intermittent or reduced schedule leave under the FMLA. Employees are entitled to such schedule changes to their own position when medically necessary. Light or modified duty often involves performing tasks of an alternative position.

Therefore, while the FMLA and workers’ compensation (and/or the ADA) can work together, any time spent working a light duty position under any of these laws may not be counted as FMLA leave.