man construction worker tired sweating silhouetteContinuing in our series to test your employment law IQ, this week we will focus on FMLA requests often received in HR offices.

Scenario: Henry Fixit worked as a maintenance man for Sleep Inn for almost 20 years. Sleep Inn has 105 employees. As part of Fixit’s regular duties, he was constantly climbing ladders, lifting heavy equipment, and performing other physical labor. Fixit recently suffered a non work-related injury that required surgery. He requested FMLA leave, which Sleep Inn approved. After two months, Fixit gave Sleep Inn’s HR Director a doctor’s note, stating that Fixit was able to return to work, but with certain lifting and bending instructions. When Sleep Inn refused to create a light duty position for Fixit, Fixit sued for FMLA interference.

Which of the following statements is correct?

A.  Sleep Inn interfered with Fixit’s FMLA entitlement when it refused to offer him a light duty position.

B.  Sleep Inn is not liable for FMLA interference, but it would be liable under workers’ compensation laws for its failure to create a light duty position.

C.  Sleep Inn is not required to create a light duty position for Fixit.

D.  None of the above.

The correct answer is C. The FMLA does not require an employer to create a light duty position. According to the regulations:

[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition … the employee has no right to restoration to another position under the FMLA.”

Because light duty is not an “equivalent” position, the FMLA does not mandate restoration to a light duty position. It only protects employees who can return and perform all of the essential functions of their position. Because Fixit’s doctor only released him to light duty, Sleep Inn had no obligation under the FMLA to bring him back to work. B is incorrect because Fixit’s injury was not work-related.

HR Takeaway:  Though Sleep Inn should be safe under the FMLA, employers should also consider potential ADA issues. Before denying light duty to an employee returning from FMLA leave, you must consider whether the ADA requires the light duty as a reasonable accommodation. If you have light duty available, and do not have to create a light duty position to accommodate the employee, the ADA will likely require the consideration of temporary light duty as a reasonable accommodation.