Q. An employee was injured away from work. He is now demanding to return to work as an accommodation for his injuries, which he claims is a disability under both the ADA and Minnesota Human Rights Act. We do have a transitional work program, whereby we create work to aid workers injured on the job in returning to work. The work involves duties that we otherwise outsource, such as floor sweeping, etc. Our injured employee is not able to return to his prior position due to the physical nature of that job, and is now demanding that we provide him this sort of transitional work. Must we?
A. It appears from your question that your transitional work program is really “make work,” with no relation to the actual job duties typically performed by this employee. This is the sort of transitional work program historically permitted to be reserved for employees recuperating from work-related injuries. This position is consistent with the long-recognized rule that employers need not create a job as an accommodation for disabled workers. This argument is also supported by the EEOC’s 1996 Guidance on this issue. (See www.eeoc.gov/policy/docs/workcomp.html.)
Therefore, your program sounds like the sort of transitional work that you should be able to restrict to employees returning to work from work-related injuries. However, to do so, it is important that these make-work duties are truly that, and not positions that you simply reserve for employees returning from work-related injuries or a modification to an existing position to lessen its physical demands.
Also note that, as a matter of practice, reserving even this transitional work for those recovering from work-related injuries presents some risk as a business practice where the transitional work is frequently made available or in use by others and permitting this work for the disabled worker would not create a significant or undue burden for the employer.
These issues can be very fact specific, and you should consult your attorney to properly assess the risk to your business in restricting your transitional work program only to workers injured on the job.
Susan K. Fitzke and Sarah J.Gorajski are shareholders, advising clients out of Littler Mendelson’s Minneapolis office.
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