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You can offer, but not force, light duty as an option for FMLA leave

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

The Family and Medical Leave Act (FMLA) allows certain employees to 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 are entitled to reinstatement to their regular positions. The time spent on light-duty work would count toward the employees' 12-week FMLA-leave allotment for the year.

Key points: You aren't obligated to offer light-duty work during FMLA leave. And, even more importantly, when offering light-duty assignments to employees who request FMLA leave, make sure it's always the employees' choice, made after being fully informed of their rights to accept the unpaid leave over light duty. Employees must decide if they want 12 weeks of unpaid leave, 12 weeks of light duty or some combination.

Note: Light-duty policies can also trigger issues under the Americans with Disabilities Act.

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 company fired her when it became clear that she wouldn't be able to return to her regular job.

She sued, claiming that the light-duty assignment violated the FMLA because the company coerced her into accepting it, in lieu of taking time off. She also said the company failed to notify her that the time spent on the light-duty job counted as FMLA leave.

The company argued that it didn't violate the FMLA be-cause it provided the employee with 12 weeks of FMLA leave that began when she was injured and assigned to the light-duty job. It also said the period of light duty counted as FMLA leave.

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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