Do you assign light-duty work to some employees returning fromeven if you believe they aren’t ready to perform all parts of their regular jobs? If so, here’s a warning: You can’t cut off their job-protection rights by counting light-duty work time against their entitlement.
That’s because the most recentspecifically say that an employee who voluntarily accepts light-duty work because she can’t yet do her regular job doesn’t lose any by doing so. If she rejects the offer, you can, of course, count her time away as FMLA leave until she had used up her 12-week allotment.
Recent case: Christine Hoff-Pierre worked as a medical coder until she injured her arm and shoulder at work. She received workers’ compensation and was temporarily placed in a light-duty position. Her employer didn’t count her time working light duty against her FMLA time off, but did count it against her job-protection rights.
After 12 weeks had elapsed, she was informed that her job had been posted and a replacement hired. When she got a clean bill of health, she wanted her job back. Instead, she was fired.
Hoff-Pierce sued, alleging that all the time she worked at light duty shouldn’t have counted against her 12 weeks of unpaid leave, or her job protection.
The court carefully read the FMLA regulations. It concluded that under the pre-2009 regulations, employers could count light-duty work against protected leave time. Now, they can’t. However, because Hoff-Pierce used her leave before the 2009 changes, the old rule applied. (Hoff-Pierre v. Health Care Alliance, No. 1:09-CV-884, SD OH, 2011)
Final note: If your company is still operating under the old law, change those rules now.