When FMLA and workers’ compensation laws interact

Is it light duty or an alternative position?

Posted March 3, 2017

Stan had been home recovering from a workplace injury for a couple weeks. His occupational health care provider indicated that, while he couldn’t perform all the functions of his job, he could perform light-duty tasks.

In addition to workers’ compensation benefits, Stan’s leave was also tracked as FMLA leave. Abby, the FMLA administrator, wondered whether the company could offer Stan a light-duty position and pay him less than his regular wage rate, as the company often did with light-duty positions.

FMLA is one of those pesky laws that interact with many others, including workers’ compensation. Many workplace injuries and illnesses require time off and that time could be protected by the FMLA.

In this situation, a couple different concepts are in play:

  • light duty for workers’ compensation, and
  • alternative positions for foreseeable intermittent/reduced schedule FMLA leave.

Declining light duty

The FMLA provisions referring to workers’ compensation indicate that, if the health care provider treating an employee for a workers’ compensation injury certifies the employee is able to return to a light-duty job, but is unable to return to the same or equivalent job, the employee may decline an offer of light duty.

As a result, however, the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the 12-week entitlement is exhausted.

Looking at the alternative

The FMLA provisions dealing with alternative positions, on the other hand, indicate that an employer may require an employee to transfer to such a position until the leave is finished, if that position better accommodates intermittent or reduced schedule leave.

An employee’s need for leave, however, must be foreseeable based on planned medical treatment.

The alternative position must be paid at the same rate as the original position. At the conclusion of the leave, the employee must be returned to his or her original position (or an equivalent one).

Alternative, light duty are different

The FMLA requirement that an employee be able to return to the same position and pay rate that he held before going on FMLA leave applies only if the employee is physically able to perform the functions of that position.

Therefore, an alternative position is not the same thing as a workers’ compensation light-duty position. It is permissible to pay someone less for a light-duty position without violating the FMLA.

A court’s view

A court case from ten years ago supported the relationship between lower-paid, workers’ compensation light-duty work and the FMLA.

An employee earned $12.23 per hour. She suffered a workplace injury and was released to return to a light-duty position.

While on light duty, she performed office duties for 25 hours per week, earning $9.00 per hour.

The employee filed suit, seeking recovery of the $3.23 per hour wage differential. She argued that, while on light duty, she was entitled to receive the pay rate she had earned in her regular positon, per the FMLA.

The court, however, indicated that there is no such thing as “FMLA light duty.” To the extent that “light duty” is mentioned in the regulations, it is as a component of a workers’ compensation program.

The FMLA regulations do not address the rate of pay an employee is to receive while on light duty because that matter is covered by workers’ compensation, not the FMLA. While an employee may receive payment through workers’ compensation benefits while on FMLA leave and an employer may not require an employee to use paid leave time while receiving workers’ compensation, the FMLA does not require an employer to pay a certain pay rate while the employee is on leave.

In short, a light-duty job offered based on a workers’ compensation injury and resultant restrictions may be paid at a lower rate than the employee otherwise would receive in his or her regular position.

Hendricks v. Compass Group, USA, Inc., 7th Circuit Court of Appeals, No. 06.3637, August 6, 2007.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.


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