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How should I handle an employee returning from FMLA with light-duty restrictions?

Although the Family and Medical Leave Act (FMLA) generally requires an employee to be restored to his or her former position upon return, restoration is not necessarily required under the FMLA if the employee is physically unable to perform the essential functions of his or her position. An employer also is not required to create a new position simply to accommodate the employee's need for light duty. FMLA regulation 825.215(c) states:

If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers' compensation, the employee has no right to restoration to another position under the FMLA. The employer's obligations may, however, be governed by the Americans with Disabilities Act (ADA), as amended.

Light duty should not be confused with a reduced or intermittent leave schedule, which employers may be obligated to provide under the FMLA. Under a reduced or intermittent leave schedule, an employee works a modified work schedule in the same (or an equivalent) position. Conversely, a light-duty position involves restricted duties or an entirely different job.

Though light-duty jobs are not guaranteed under the FMLA, an employee may have a right to a light-duty job under the ADA. According to the ADA regulations, if the employee's serious health condition rises to the level of a disability, the employee may have a right to a reasonable accommodation, which could include a light-duty position. However, like the FMLA, the ADA does not require that an employer create an entirely new position to accommodate an employee, though it does require an employer to consider whether a vacant position might be a viable alternative. The U.S Equal Employment Opportunity Commission (EEOC) has published guidance on this topic.

Employers often offer light-duty work for employees who are returning from an injury covered under workers' compensation. This tactic can be helpful in reducing overall workers' compensation costs, although it is not specifically required under workers' compensation laws or the FMLA. Although an employer cannot mandate or require the employee to accept a light-duty position, if light-duty is offered and the employee declines the work, the employee may become disqualified for workers' compensation benefits.

If an employee does not return to work from FMLA leave (in other words, the employee refused to return to light duty) when he or she has medical restrictions that constitute a serious health condition, the leave is still covered under the FMLA until the time it has been exhausted.


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