Do you offer light duty positions to employees who would otherwise be out on a workers' compensation leave? Many workers’ compensation carriers will encourage you to find a light duty position for your injured worker who is unable to return to his/her former position due to a work related injury. In a BLR webinar entitled "Workers’ Comp 101: What HR Must Know," Susan Fahley Desmond offered information on some of the advantages and disadvantages to doing so. She also outlined some court cases dealing with the topic of restricted duties for injured employees.
The advantage to light duty positions is that it will decrease your workers compensation exposure. However, a disadvantage to light duty positions is that it can create morale issues. Another disadvantage is bringing back an injured worker too soon can lead to another injury.
In the case of Turner v. Hershey Chocolate USA (440 F.3d 604 (3rd Cir. 2006)), the plaintiff worked for the employer in several production capacities and as a custodian. The plaintiff was diagnosed with medical problems that required multiple surgeries and restrictions of no bending, stooping, or lifting of more than 20 pounds.
In this case, the employer reassigns the employee to a position as “shaker table inspector.” Some stations are considered more demanding than others. Also, due to an increase in repetitive stress injuries, the employer instituted a rotation requirement. In this case, the employer refused to exempt the employee from the rotation requirement.
The court said that it was a jury question of whether a rotation requirement could be considered an essential function of the job.
In the case of Wilburn v. Lucent Technologies, Inc. (2000 WL 1772670 (N.D. Tex. 11/30/00)), the employer employed the plaintiff as a production specialist. Due to medical issues, the employee was issued restrictions regarding lifting, pushing, pulling more than 5 lbs, bending, or stooping. The employer allowed the employee to seek assistance from a co-worker if necessary. Then, the plaintiff applied for promotion to machine setter. The employee was refused this promotion after employer determined the employee could not perform the essential functions of that job without violating the work restrictions.
The court deemed that is was an unreasonable accommodation for employer to exempt an employee from essential functions of job. The law does not require an employer to require others to perform essential functions of a role.
Susan Fahey Desmond is a shareholder with Watkins Ludlam Winter & Stennis (www.watkinsludlam.com) and has been representing management in labor and employment law since 1985. She is listed in Best Lawyers in America for labor and employment law and has been named by Chambers USA as one of America’s leading business lawyers. She is a frequent speaker and author for labor and employment law.
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