You’ve heard the old wives tale. I’ve heard it too. And I am calling bunk and it’s about time you did also. Every single time I hear this wives tale, I ask the same thing – show me one case. Never in 20 years has anyone been able to prove to me that this mythical story of finding the pot-o-gold under the rainbow is actually true. But, I am able to show you that it is not.
The 90 day rule
So, here it is. Light duty can only be given for 90 days or the employee will be entitled to that light duty position for life. 90-days gives you a lifetime job? Well, there are two problems with this line of thought. No where will you find in any labor law or otherwise that light duty is limited to 90 days. This is as made-up as the moon is made of cheese (I’ll prove it with a legal case below). Secondly, if you are still talking about lifetime positions, you have bigger HR problems (contract issues) that should be addressed immediately.
Raine vs city of Burbank (2006) is the case. The case you should memorize, become ultra-familiar with and repeat ad nauseam whenever someone utters their silly wives tale. The key to this case is that the work is temporary, transitional or otherwise not a permanent position. While I could go on to explain this case in more detail, the explanations offered below do a very fine job
The trial court’s summary judgement said
The trial court granted summary judgment for the City, concluding Raine was not a qualified person with a disability under FEHA because he was unable to perform the essential job functions of a sworn patrol officer with or without reasonable accommodation; it was unreasonable to require the City to permanently place Raine at the front desk, a permanent position reserved for civilian personnel, without altering Raine’s police officer status and salary; and there was no evidence of disability discrimination, age discrimination or retaliation. – See more at: http://caselaw.findlaw.com/ca-court-of-appeal/1325666.html#sthash.wMKS4aZr.dpuf
Richard Kern further explains the case
The court noted that California law is emphatic that an employer has no affirmative duty to create a new position to accommodate a disabled employee but that no California court had yet addressed whether an employer is obligated under the Fair Employment and Housing Act to make a temporary position available indefinitely once the employee’s temporary disability becomes permanent. While it is true that Federal Court’s of Appeals’ interpretation of the Americans With Disability Act (upon which the Fair Employment and Housing Act’s accommodations are modeled), consistently has held that an employer is not required to create a light duty position for purposes of accommodating a disabled employee, Raine suggested to the court that the Fair Employment and Housing Act should be interpreted to do just that. The court noted that the evidence was undisputed that the front desk position used by the Burbank Police Department for officers recovering from injuries was typically a permanent job for civilian police technicians receiving less pay and fewer benefits than sworn police officers. However, Raine made it clear that he did not want that civilian position but instead wanted to maintain his position as a police officer with benefits and pay commensurate with that job and still hold the position which was reserved for a civilian assignment. The court distilled the question as whether the accommodation requested was reasonable and thus required in the first place. The court held otherwise and refused to engage in the analysis on the basis Raine suggested, that the accommodation did not impose undue hardship on the City of Burbank. See more at http://www.pknwlaw.com/legal_RainevBurbank.html
Offering light duty is beneficial to all parties involved (employer, employee, insurer, family) and should be part of your worker’s compensation program at a minimum. However, structuring your program to benefit everyone is also important. I would suggest that you consider the following items when crafting your program:
- Create a light duty (whatever name you want to use) acceptance form
- Have the employee sign that they are accepting the light duty assignment
- Update the form every time the employee gets a new doctor’s restriction
- Ensure that the assignments remain assignments only – don’t use job, career, position or other terms that infer a position
- Never use the term “permanent” – no one has a job for life period
- Create a list of light duty assignments (again not positions) that are available for consideration