duration of light duty

JKlink

I'm working with a client that has a new WC carrier, the loss prevention person was there yesterday & REALLY surprised that this company has a policy of light duty (work related) for eigth weeks.

How long does your company allow for a work related light duty?
What reason do you have for the length?

Thanks for any help!

Balloonman

I have had restricted duty policies (I hate the phrase light duty, makes people think they cannot work)that had time limits. At the end of the time limit the situation was reviewed to determine if it was appropriate to extend restricted duty for an additons length of time up to 12 weeks. We evaluated how the person was progressing, as well as their compliance with their restrictions.

Don D

Our Restricted Duty Return To Work policy, for wcomp only, 'suggests' that the intention of the policy is to return the employee to full unrestricted duty with a 30-day period of time. We also have the disclaimer in the policy that the company reserves the right to deviate from that standard at our discretion. I think your client should have asked the stop-loss counselor to suggest what the policy should be and ask them to back it up with industry standards or recommendations of how other companies are addressing the situation. Typically, its 'those people' who want the company to return the worker with allowed restrictions just to get them off the 'lost days books'.

LindaS

Our company's policy allows for light duty for up to six months as long as there is some improvement during that time. If an employee is still unable to work after that time then layoff and/or termination is examined. The reason for this is twofold:

1) I recently attended a Labor Law Clinic conduted by a nearby law firm during which the subject of the ADA was discussed at length. As you probably know, persons with an impairment that falls under the definition of a disability must have reasonable accomodations made for them. Light duty being deemed a reasonable accomodation. The law also states, however, that the employee must be able to perform the essential functions of that position and that the employer does not have to create a new job for that employee. Having a definite time period for the light duty allows the employer to defend the layoff or a termination of an employee should that employee be unable to perform their job after that time period, although all ADA claims are pretty "hairy".

2) Six months is more reasonable than eight weeks for healing purposes. I have been in situations wherein an employee has taken up to a year to heal from an injury (this was not with my current company). In that situation the employee informed me that she was a "slow healer" and because the company did not have a definite timeframe for light duty, there was nothing that was done. Also, when I spoke with other employers in my area, the ones that did have a written policy all allowed at least six months.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 11-19-02 AT 08:28AM (CST)[/font][p]Linda: I too recently attended an annual update seminar on 'Negotiating The Comp, ADA, FMLA Labyrinth'. Our presenters were all attorneys experienced in labor law issues. Our seminar reminded us that while the ADA requires the removal of MARGINAL functions as a reasonable accommodation, the ADA cannot and does not require accommodation by the removal of any of the jobs ESSENTIAL functions. The ADA language doesn't state that "light duty is a reasonable accommodation" because the ADA doesn't anticipate what the definition of light duty might be. ADA addresses marginal and essential functions. Light duty is defined a billion different ways and I also prefer restricted duty. While FMLA allows the person to return (within 12 weeks) when they can perform the essential functions and gain a release, ADA does not require that any essential functions be modified or removed although Comp carriers will suggest that a good restricted duty program often even contain the removal or modification of essential functions. Although these three programs often mesh, they also often butt heads. None of the three requires us to modify essential functions. But Comp 'suggests' it sometimes.

LindaS

Don: Regarding the issue of light-duty (or restricted duty), I agree with your statements regarding the essential and marginal functions of a job when you are examining a reasonable accomodation on a permanent basis but I was talking about accomodations on a temporary basis. In addition, although there is not specific language in the ADA regarding temporary light or restricted duty, it is something the ADA, and the courts, encourage.

In addition, creating restricted duty positions for only those individuals who suffer work related injuries but not opening those jobs to those whose illness or injury is not work related can create some discrimination claims as well.

One last thing to keep in mind, allowing an employee to come back to work, expecially when their has been a work-related injury, with a temporary restriction regardless of whether or not they are able to perform the essential functions of their regular job would probably significantly reduce the TPD payments to the individual which would then bring down the cost of the entire claim.

Don D

>
>One last thing to keep in mind, allowing an employee to come back to
>work, expecially when their has been a work-related injury, with a
>temporary restriction regardless of whether or not they are able to
>perform the essential functions of their regular job would probably
>significantly reduce the TPD payments to the individual which would
>then bring down the cost of the entire claim.


Yes, that's the whole purpose of comp-return-with-restrictions policies. Our attorneys helped me write our return policy and they had no problems with any perceived discrimination issues. I have again today clarified with them that ADA does not suggest, require or anticipate that an employer will remove ESSENTIAL functions of the job to accommodate. Perhaps we need a second-legal-opinion tie-breaker.

LindaS

Are you saying that your return policy does not accomodate an employee's temporary return to work restrictions unless they are able to perform the ESSENTIAL job functions?

Don D

>Are you saying that your return policy does not accomodate an
>employee's temporary return to work restrictions unless they are able
>to perform the ESSENTIAL job functions?

I am saying that our written policy on Restricted Return To Work After Industrial Accident or Injury addresses workers' compensation situations only. Of course we comply with ADA and FMLA requirements. But, we do not allow employees to return without being released to perform the job's essential functions in any case except comp. Essential functions is the key. According to the ADA, an individual who is not released to return to work able to perform the essential functions of the job is not 'a qualified individual with a disability'. Accommodations required under ADA do not include the elimination of essential functions or the restructuring of jobs or make work jobs, only marginal functions that can either easily be done by others or can be eliminated altogether.