Light Duty Issues – Pregnancy, ADA

In the area of light duty assignments for temporarily “disabled” employees two questions that often arise are how to treat pregnant employees who are not able to perform all their regular job duties and how do the requirements of the Americans with Disabilities Act (ADA) interact with light duty?

Although employers are under no legal obligation to create a new position for a disabled worker, many employers use temporary light duty assignments to help an employee injured on the job ease back into working.  Because most companies don’t have a large number of light duty assignments, employers often restrict their usage to recovery from employment-related injuries.  This would obviously rule out light duty positions for pregnant employees.  Can employers do this or is it considered pregnancy or sex discrimination?

Courts in various jurisdictions have ruled differently on this issue (and the U.S. Supreme Court refuses to take up the question) but generally employers are able to restrict light duty positions to on-the-job injuries (thereby eliminating pregnancy) if the rule is applied consistently in all situations.  Once an exception is made for a male employee who suffered a heart attack at home and requests a light duty position, then an employer is open to discrimination charges if a pregnant employee is subsequently denied light duty.

Two recent cases illustrate this.  A Phoenix trucking company that denied a pregnant over-the-road trucker a light duty office position was upheld because the company had a policy that light duty jobs were available only to those who sustained on-the-job injuries and had applied it without exception to male and female employees alike.  In contrast, six female police officers from Suffolk County, New York, did prevail in their lawsuit alleging pregnancy discrimination because they were denied desk and other non-patrol jobs.  The county had instituted a policy that officers with non work-related injuries could no longer request limited duty.  However, the record showed that numerous exceptions had been made by assigning male officers to light duty even though they were injured off the job.

ADA

The Americans with Disabilities Act prohibits an employer with 15 or more employees from discriminating against any qualified individual with a disability who can perform the essential functions of the position, with or without a reasonable accommodation.  If an employee sustained the disabling injury on the job, workers compensation return to work rules also come into play.  Employee’s rights under workers compensation and under the ADA are separate and what satisfies workers compensation regulations concerning job accommodations may not satisfy ADA requirements.

If a worker is disabled within the ADA definition (recent court decisions have considerably narrowed that definition), then the employer must seek a reasonable accommodation to enable the employee to perform the job.  Such accommodation may include light duty assignments, but the goal is to return the employee to his/her previous position.  If the impairment is deemed permanent, then the employer will have to determine if there can be a reasonable accommodation to allow the employee to perform the essential functions of the job or if there is another job the employee can perform.  The employer is not required to create a position for the injured employee or to make a light duty situation permanent and, as mentioned above, an employer generally can restrict light duty to positions to employees injured on the job.

However, the Equal Employment Opportunity Commission (EEOC) has taken the stance that even where an employer reserves light-duty positions for employees with occupational injuries, the ADA may require the employer to consider reassigning an employee with a disability who is not occupationally injured to such a position as a reasonable accommodation.  This would work against the employer who is trying to consistently apply a policy of reserving light duty positions only for workers injured on the job.  And, as pointed out earlier, when exceptions are made to such a policy, then light duty positions must be open to all injured/disabled employees to avoid discrimination claims.

Many decisions of this nature are made on a case-by-case basis, depending on all the relevant facts such as the nature and extent of the worker’s injury/disability, what, if any, light duty positions are available, and what would constitute a hardship for the employer.  It is an area where employers must tread carefully.

If you have any general questions regarding the ADA or a specific instance in your workplace that you need guidance on, HR-OneSource can provide help.  Please contact David L. Hansen, SPHR, CCP at (515) 221-1718 or hansend@hr-onesource.com.