FMLA and Returning to Work on Light Duty

See also my main FMLA article.

Big WARNING: You might not be eligible for FMLA protection ——- To be eligible for FMLA protection, all of the following must apply:

• You have to work for a large employer of 50 or more people within 75 miles of your jobsite
• and you have to have been there for one year
• and worked 1250 hours in the prior 12 months
• and have a qualifying serious health condition
• and not have used up your 12 weeks of allowable FMLA time
• and have complied with the employer’s certification requirements
• ——— If all of those things apply, then FMLA will protect you if you want to refuse to return early on “light duty”, as long as you do in fact return to full duty before your FMLA time is used up.

See also my main FMLA article.

If you are eligible for FMLA protection, you do not have to agree to return on light duty.

Trying to force you onto light duty: What if the company doctor releases you to “light duty”, as in workers comp situations? When an employee injured himself at work, the employer may try to reduce his worker’s compensation payments by offering “light duty”. In workers comp injuries, some employers might force you to take light duty by telling you that you will be fired if you refuse. If the employer is covered by FMLA, and if you are eligible for FMLA protection (see above), with FMLA leave time remaining, the employer cannot force you to accept light duty.

If you are eligible for FMLA, You can stay out on full time leave until you are fit for full duty, as long as you do not exceed your 12 weeks of FMLA-protected time. You might lose a benefit, such as workers comp disability payments, by refusing light duty, but the employer cannot force you onto light duty against your will. Likewise the company’s short term disability plan might require you to accept light duty if offered by the employer, and so you might lose those disability payments if you refuse light duty. It’s ok under FMLA for the employer’s comp carrier, or those disability carriers, to stop paying you if you refuse light duty - that’s because the FMLA does not require paid leave.

The Law of FMLA and Light Duty: Federal Regulation 29 CFR 825.207 (d)(2)

There’s a federal regulation on the point of FMLA and light duty: 29 CFR 825.207 (see subpart d2), providing that an employee is NOT required to accept “light duty”. The employee can refuse light duty and merely stay out on leave until he is fit to perform the essential functions of his job —-

“(d)(2) … However, if the health care provider treating the employee for the workers’ compensation injury certifies the employee is able to return to a “light duty job'’ but is unable to return to the same or equivalent job, the employee may decline the employer’s offer of a “light duty job'’. As a result the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the 12-week entitlement is exhausted.”

From 29 CFR 825.207 (see subpart d2).

The US Department of Labor’s Q and A says that the employer cannot force you to accept a “light duty” assignment, and that you have the right to stay on full time leave rather than return to light duty. See FMLA Q and A, with a subsection about light duty Here’s a quote from the DOL’s Q and A page, as of Dec 2007: “Q: Can my employer require me to return to work before I exhaust my leave? A: [ …. ] The employer may not, however, require you to return to work early by offering you a light duty assignment..” (I omitted the part of the answer that talks about your duty to provide proper medical certification for your absence.)

Question: What happens if you are still not ready for full duty at the end of your 12 weeks of FMLA protected time?

Answer: You are vulnerable to being fired, and the FMLA will not care. BUT - the law of discrimination and wrongful termination might care, if the employer is treating you more harshly than he treats others. But if the employer always fires people who exceed their 12 weeks of FMLA time, and he fires you too, then the employer isn’t discriminating against you - he treats everyone badly.

In determining whether an employee is fit to resume his job, the courts tend to use the terms used in Americans with Disabilities Act cases: Can the employee perform the “essential functions” of his pre-FMLA job? If not, then the employer can deny reinstatement. If 12 weeks have been used up and you are still unfit to perform all of the essential functions of the job, you are vulnerable to being fired. If you have a qualifying disability (link goes to EEOC’s ADA pages) you can request accommodation of course, to help you perform the essential functions.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).