The Interaction Between the FMLA & ADA Related to “Light Duty” for an Injured Employee

If the Family Medical Leave Act (FMLA) entitles an employee to leave, an employer may not, in lieu of FMLA leave, require an employee to take a job with a reasonable accommodation.  However, the Americans with Disabilities Act (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.  Many times employers engage in coercion to get an injured employee to return to work after an on the job injury covered by worker’s compensation.  These employers will make what is called a bona fide offer of employment to the injured employee which will have a job description tailored to the employees medical restrictions, even to the point of sitting in a chair and counting ceiling tiles.   This is usually done to keep the employer from having a lost time accident.   It is not illegal for the employer and employee to voluntarily agree to this arrangement.  However, the employee cannot be forced to forgo his right to take FMLA leave rather than enter into the “light duty” situation while recovering from the accident.  Of course, the employer does not have to pay the employee while he utilizes FMLA leave and the worker’s compensation insurance carrier can lawfully refuse to pay benefits when an employee refuses the light duty or the job tailored to his medical restrictions. (see FMLA reg. sec. 825.220 (a)(3)(d))