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Offer, don’t force, light duty as option for FMLA leave

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in FMLA Guidelines,Human Resources

Issue: Court ruling says employees can perform light-duty work during their FMLA leave.

Benefit: In such cases, time spent on light-duty work would count toward the employees' 12-week FMLA allotment for the year.

Action: While you can, in some cases, offer light-duty during FMLA leave, never require it.

The Family and Medical Leave Act (FMLA) lets eligible employees take up to 12 weeks of unpaid leave each year. But, as the following case shows, you can provide employees with options for those 12 weeks, including working in a light-duty position during that leave time.

In such cases, after 12 weeks of light duty, employees would be entitled to reinstatement to their regular positions. Benefit to you: The employees' time spent on light-duty work would count toward their allowable 12 weeks of FMLA leave for the year.

Key points: You aren't obligated to offer light-duty work during FMLA leave. And, even more importantly, make sure the light-duty option is the employee's choice, made after being fully informed of his or her rights to accept unpaid leave over light-duty work. Employees must decide if they want 12 weeks of unpaid leave, 12 weeks of light duty or some combination.

Recent case: An employee recovering from back surgery opted for a light-duty position, rather than unpaid FMLA leave, so she could keep working. But after she remained on light duty past the 12-week deadline, the employer fired her when it became clear she couldn't return to her regular job.

She sued, claiming the light-duty assignment violated the FMLA because the employer coerced her into accepting it, in lieu of taking time off.

Result: A district court sided with the employer. While noting that it was hard to tell if the employee's choice of the light-duty work was truly voluntary, the court said no FMLA violation existed because the employer held her job open for 12 weeks. (Roberts v. Owens Illinois Inc., No. 2:02-cv-00207-LJM-WGH, S.D.Ind., 2004)

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