Does Light Duty Require the Same Pay---under WC? FMLA? ADA?

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Pat Rountree.jpgAt times it is difficult to determine what employers are required to do under a single law, but more often than not Workers’ Compensation, FMLA and ADA overlap, creating even more confusion.  If an employee has restrictions that inhibit their job performance, what are the options? We will look at each law individually and then consider overlap. 

 

The North Carolina Workers’ Compensation law does not specifically address pay for light duty work. If an employee who is unable to do their regular job and cannot be accommodated is assigned to light duty, it is up to the employer whether to continue to pay the regular salary for light duty or to pay based on the job responsibilities of the light duty job which could be lower pay.  If the employee’s pay is reduced on light duty, they will be entitled to 66-2/3 of the difference in their regular pay and light duty pay through workers’ compensation. 

 

Under FMLA, if an eligible employee needs foreseeable leave for planned medical treatment, an employer may transfer the employee temporarily to another position that better accommodates the need for leave.  In this case the pay must remain the same as the regular job.  (Note that an employee cannot be transferred if they will need intermittent or reduced schedule leave for a medical condition but the timing for the absences are not known in advance.)

 

If an eligible employee cannot perform the essential functions of their job due to a medical condition and requests a leave of absence under FMLA, the employer may offer light duty if there is light duty work available.  If the employee accepts the light duty position in lieu of taking FMLA leave, the pay can be adjusted to reflect appropriate compensation for the duties without violating FMLA.  The employee is still entitled to restoration to their original job if they are able to return from the light duty job to their regular job, but only until the end of the applicable 12-month FMLA leave year.

 

Under the Americans with Disabilities Act, employers may move an employee to a lower paying light duty position only after it has been determined that there is not an accommodation that will enable them to perform the essential functions of their current job (accommodation may require a leave of absence that is expected to enable them to perform their job after treatment and recuperation), AND there is not a vacant position equivalent to their regular job (equivalent in responsibility, pay and benefits) that they are qualified to perform. 

 

It is possible an employee can be covered by WC, FMLA and ADA all at the same time. By applying the rules above, you can see that in most cases where an employee is unable to perform their regular job and is moved to an alternate position, you will not be required by law to maintain the same pay.  The exceptions are if the employee is covered by FMLA and the employee is moved because of foreseeable medical leave to an alternate position that can better accommodate the leave schedule; or if the employee with a disability under ADA cannot be accommodated to perform their essential functions, but there is a vacant alternate position that has equivalent responsibility and pay and the employee can perform that job with or without accommodation.

 

Employers may always choose to do more than they are required to by law.  Some are of the opinion that an employee who was injured on the job should not have their pay lowered when they are attempting light duty while recovering.  The same may be said about employees who have suffered a  disabling condition. Others have the view that paying regular pay for a light duty job is a disincentive to return to the regular job.  An option may be to continue regular pay for a specified period of light duty (a month, two months, etc.) and if the employee is unable to return to their regular job at that time, the pay would be adjusted to the lower rate applicable to the job.  The specified period should be consistent to avoid any claims of discrimination.

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