Some employees qualify forbecause they have a temporary medical problem that prevents them from performing their usual job. Often, they’ll elect to accept a light-duty position instead of taking 12 weeks’ unpaid leave. Light-duty jobs often come with a lower paycheck, presumably because so many of those positions are really “make-work” jobs typically used to accommodate on-the-job injuries.
What happens if the employee elects light duty and demands his or her regular pay? Does he or she have that right under the? Not according to the 7th Circuit.
Recent case: Susan Hendricks injured her rotator cuff while working as a driver. She applied for workers’ compensation and was offered a light-duty position paying $3.23 per hour less than her pre-injury job.
Hendricks sued, alleging the company violated the FMLA when it allowed her to work the light-duty position without paying her the same amount she would have received if she were still a driver. She said she had merely substituted light duty for FMLA time off.
The court disagreed. Logically, it reasoned that FMLA leave is unpaid and anything the company paid her was voluntary. It also said that nothing in the FMLA guarantees light-duty work, so the FMLA does not apply. (Hendricks v. Compass Group, No. 06-3637, 7th Cir., 2006)
Final note: Remember, the FMLA allows employers to substitute paid leave such as vacation, sick days or personal days for unpaid FMLA leave. When it comes to light-duty work, employees can accept such assignments in lieu of unpaid FMLA leave, but cannot be forced into such work. If the employee elects light duty, he or she can be paid at a lower rate.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Tell supervisors: Brief contact is OK, but never badger employee out on FMLA leave
- Do colds and the flu qualify for FMLA leave?
- OK to terminate disabled worker—If there's no way to accommodate
- You're risking FMLA lawsuit if call-in rules don't allow flexibility in emergencies