Human Resource Blog

Employer Forced Leave After Returning to Work from Surgery

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I had lower back surgery on 1/14/2008. I was off work on paid sick leave and vacation time from 1/13/2008 - 2/5/2008. I returned to work on 2/06/2008 with light duty restrictions and worked every day of my schedule through 3/19/2008.
On 3/13/2008 I went to my surgeon for the 8 week post operative visit. He said that I was doing good, noted that I had returned to work and elevated my restrictions with lesser requirements.
Subsequent to this on the afternoon of 3/19/2008 my employer forced me into an Unpaid Leave of Absence for 3 months even though I had been working for 6 1/2 weeks already with my Dr.s permission. Is this legal and if not, what recourse do I have?

Thank you

It’s hard for our experts to comment on this situation without knowing all the details. In particular, there isn’t enough information to determine why the employer put the worker on light duty for more than 6 weeks, and then refused to give him additional light duty assignments. Was the employer aware of the light duty restrictions when the employee returned to work on 2/6?

Light duty is a problematic issue in the HR world. In the past, some companies have had the policy not to put workers on light duty, because they feared that workers would aggravate an injury. At those companies, employees who were physically unable to perform their jobs were forced to take a leave of absence. In some cases, the courts have upheld these policies, when they did not involved a disabled worker. In other cases, the courts have ruled that such policies violated the ADA law when a disabled employee was involved.

Generally, the courts have upheld that employers don’t have to create a new light duty job for a worker if none exists. And, they don’t have to hire a second person to complete major job duties, when an employee is on light duty.

Suppose in this question, Marcus works in a warehouse loading heavy boxes. While Marcus is on light duty, he is transferred to the parts department while Marsha is on FMLA leave after the birth of her child. When Marsha returns from leave, by law, she is entitled to her old job back. Because there is only one position in the parts department, the company no longer has a “light duty” assignment open for Marcus. If this was the only light duty assignment available, then the company might be justified in putting Marcus on leave.  

However, under the Americans with Disabilities Act, or ADA passed in 1990, employers are required to make reasonable accommodations for workers who are disabled. In some cases, the courts have ruled that providing a light duty job is a reasonable accommodation.

Not everyone with an injury or illness is disabled under the EEOC definition for ADA. The Equal Employment Opportunity Commission enforces the ADA and establishes the regulations for it. Under EEOC regulations, a person is disabled when, due to a disability, he or she cannot perform one or more major life functions such as grooming, shopping, taking public transportation, preparing meals, etc.

Suppose Toby broke his arm trying out his 10-year-old daughter’s new skateboard. Having an arm or a leg in a cast does not interfere with any major life functions. Toby can still bathe himself, wash his clothes, shop for food, and take public transportation. So, Toby is not disabled under the ADA definition. Even though Toby can’t do his job as a draftsman at an architectural firm, the employer is under no obligation to make reasonable accommodations under ADA for Toby.

However, if Toby broke his leg so severely that he was in traction, he would be unable to shop or cook for himself. Toby’s injury would be considered a disability. The employer would have to make a reasonable accommodation such as letting Toby work from home – in this case, from his hospital bed – under ADA. Providing, of course, that Toby’s doctor permitted him to do so.

It’s possible in the original question, that when the employee returned on 2/6, he was disabled under ADA and entitled to reasonable accommodation. When the doctor lifted some restrictions on 3/13, it’s possible that the employee was no longer disabled under ADA, and therefore not entitled to reasonable accommodations.

The only way to get a determination on this particular situation is to contact the EEOC at www.eeoc.gov.