Many of us take for granted that we have a basic understanding of HR law, and can rely on common sense in most employment interactions. Well, here is a typical HR issue that comes up often – let’s see how you do!
Certain positions are maintained in your Company as light duty positions to help keep workers’ compensation costs down. An employee who is currently working in one of these positions has been released by his physician to return to work with no restrictions, and his claim has been closed. You are preparing to return him to his regular position when he informs you that he is unable to perform certain duties in his customary work and cannot return. He confirms that statement with a note from another doctor. Since these positions are reserved for workers’ compensation cases, you refuse his request.
Was this proper?
Yes - You have met your obligation by offering to reinstate him to his original position.
No - Why not?
No – you have failed to consider the ADA and reasonable accommodation, and are risking a disability discrimination claim. The ADA does not require you to create a position, or provide light duty that does not exist. Obviously however, light duty does exist in this case since he has been working in a modified capacity. As our main article discusses this month, you cannot separate the ADA and workers’ compensation unless the employee’s medical condition is not a disability under the ADA definition. You should provide this employee with the Physician/Health Care Provider Form to first determine whether his injury continues to substantially limit a major life activity, and if so, begin the Interactive Process and be ready to extend his light duty status.
Source: EPLI Pro, May 2010 Newsletter