Worker’s Compensation Light Duty Programs for Occupationally Injured Employees and the ADA

November 23, 2015

Employers often establish a light-duty program that is reserved for employees who have work-related injuries or conditions during their healing periods.  The hallmarks of these programs is that temporary light-duty work is reserved for those employees receiving temporary benefits under worker’s compensation.  The rationale for this program is to help the employer comply with the Worker’s Compensation Act (“WCA”) while managing its worker’s compensation insurance premiums and easing worker’s back into the workforce after an on-the-job injury or condition.

But how does reasonable accommodation under the Americans with Disabilities Act (“ADA”) interplay with light-duty programs?  Specifically, does the ADA require that an employer that maintains a light-duty program offer a light-duty position to an employee who is a “qualified individual” but whose injury or condition is not work-related?  The Eastern District of Wisconsin recently addressed this question in Severson v. Heartland Woodcraft, Inc., 2015 WL 7113390 (November 12, 2015).  The answer is: it depends.  The Court in Severson was confronted with a decision it had issued in an earlier case, Gibson v. Milwaukee County, 95 F. Supp.3d 1061 (E.D. Wis.2015).  The outcome depends upon whether, at the time a request for a reasonable accommodation is made, a light-duty position established under a light-duty program exists and is vacant.  Neither the ADA nor the WCA require an employer to create a light-duty position.  Creating a light-duty program for worker’s compensation purposes goes beyond that required under the ADA.  Creating such a program allows the employer, pursuant to its light-duty program, to establish a temporary, light-duty job when an employee is ready to return to work during the healing period for a work-related injury or condition.  Once the employee’s healing period is over, the temporary position expires.  In other words, the employer’s light-duty program does not necessarily require that a permanent light-duty position be created.  Rather, the light-duty positions may be, and typically are, created on an ad hoc basis.

In the Gibson case, the employer had a light-duty program and also had an existing and vacant light-duty position at the time a non-occupationally injured qualified employee made a request for a reasonable accommodation under the ADA.  The Court found under that circumstance that the employer had violated the ADA by not having considered offering the vacant position to the qualified individual.  In contrast, however, the employer in the Severson case had a light-duty program that allowed for establishing light-duty positions on ad hoc basis, i.e. whenever an employee could return to work during the healing period for a work-related injury or condition.  The Court in Severson had no difficulty in determining that there was no violation of the ADA under that circumstance.

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