FMLA

AM I REQUIRED TO CREATE A LIGHT DUTY POSITION FOR AN EMPLOYEE INJURED ON THE JOB?

Robert C. Lockwood
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I frequently receive telephone calls from clients asking if they are required to create a light duty position for an employee who is injured on the job.  The well-reasoned response to that question is:  “It depends on your definition of ‘create.'”

While the question seems simple, this is an extremely complex area of the law that involves the intersection of the Alabama Workers’ Compensation Act, the Americans with Disabilities Act and the Family and Medical Leave Act.  Alabama law is clear:  the Alabama Workers’ Compensation Act does not require an employer to create a light-duty position for an employee injured on-the-job.  Bleier v. Wellington Sears Co., 757 So.2d 1163, 1172 (Ala. 2000).

But, Alabama law is not the final authority for injured employees, because the Americans with Disabilities Act potentially applies.  If an employee is a “qualified individual with a disability” (a topic which could occupy several pages of discussion) an employer may be required to supply the employee with a reasonable accommodation.  Here’s where the confusion can occur.  An employer is not required to create a light duty position.  Nevertheless, if a light duty position is available, the employer may be required to transfer the employee to that position as a reasonable accommodation.  Moreover, if the employer has previously created positions for injured employees, there may be a requirement to create a position again.

In addition to the ADA, the Family and Medical Leave Act adds to the complexity of this question.  While the FMLA does not impose any accommodation requirements on employers, it does provide protection for employees suffering from a “serious health condition.”  Employees on FMLA leave are entitled to reinstatement after exhaustion of their leave.  The Eleventh Circuit Court of Appeals (which reviews FMLA cases in Alabama) has imposed a heavy burden on employers who fail to return employees to work.  Even if you don’t have to create a light duty position for the employee, you may have an obligation to allow the employee to try to return to work, or give them additional time to return.

Every case is different.  When making employment decisions about injured employees, talk to your attorney before taking final action.

EEOC Releases Guidance Expanding Scope of Retaliation.

Robert C. Lockwood
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On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims.  The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998.  While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority.  Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly.  The EEOC’s draft guidance can be found here:  EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief.  Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.”  If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired.  In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis.  Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016.  Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.