Modified duty for workers suffering compensable injuries
In a comment to my recent post, Workers Comp Insider promises to devote “a number of blog postings at Workers Comp Insider to laying out the steps to a create win/win modified duty program.”
My thoughts are that such a program can not only reduce lost time costs, but also reduce the chance of resignation or termination. These are the events most likely to lead to litigation. Care must be taken, however to comply with the somewhat conflicting demands of FMLA and ADA (and possibly state workers comp law).
The FMLA regs provide, at 29 CFR 825.702 :
(d)(1) If FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation. However, ADA may require that an employer offer an employee the opportunity to take such a position. An employer may not change the essential functions of the job in order to deny FMLA leave. . . .
(2) An employee may be on a workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer). At some point the health care provider providing medical care
pursuant to the workers’ compensation injury may certify the employee is able to return to work in a “light duty” position. If the employer offers such a position, the employee is permitted but not required to accept the position . . . . As a result, the employee may no longer qualify for payments from the workers’ compensation benefit plan, but the employee is entitled to continue on unpaid FMLA leave either until the employee is able to return to the same or equivalent job the employee left or until the 12-week FMLA leave entitlement is exhausted. See Sec. 825.207(d)(2). If the employee returning from the workers’ compensation injury is a qualified individual with a disability, he or she will have rights under the ADA
[which may include additional leave as a reasonable accommodation].
My take on this is that modified duty may be a reasonable accomodation under the ADA, and therefore may have to be offered; but if declined by an FMLA-qualifying employee, it cannot be mandated.
I’m eager to hear what Workers Comp Insider has to say, and will link to their post(s) on the subject when I learn of them.
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