Can a Light Duty Program for Work Comp Claimants Create a Duty to Accommodate Under the ADA?
One of the most common challenges facing employers in Illinois workers’ compensation claims is preventing or minimizing exposure for disability benefits while an employee is recuperating from a work related injury. If the employee has a complete work restriction, temporary total disability (TTD) is owed under 820 ILCS 305/8(b). If the employee has light duty restrictions, the employer can avoid having to pay TTD by offering light duty work within the restrictions. Light duty work is further beneficial for the employer because it breaks the disability cycle and allows the employer to maintain contact with the employee. From the employee’s standpoint, light duty can be helpful and therapeutic because it keeps the employee active and can often lead to a return to full duty activities. By all accounts, offering light duty work is an effective approach to managing a workers’ compensation claim.
Illinois employers are also required to comply with certain federal laws such as the Americans with Disabilities Act, 42 USC § 12101 (ADA). The ADA makes it illegal for an employer to discriminate against a “qualified individual on the basis of disability.” 42 USC § 12112(a). A “qualified individual” is defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 USC § 12111(8).
Below is a discussion of Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), a relatively recent decision that explores the potential interaction between the Illinois Workers’ Compensation Act and the ADA.
Severson v. Heartland Woodcraft, Inc.
Severson is a Seventh Circuit Court of Appeals case that involved a Wisconsin employer, but the decision is applicable to Illinois employers, as Illinois falls within the jurisdiction of the seventh circuit. The plaintiff, Severson, had a long history of non-work related back problems. He had degenerative conditions in his spine that would flare up from time to time and cause problems at work. Ultimately, Severson decided to undergo back surgery and submitted paperwork to take time off pursuant to the Family Medical Leave Act (FMLA) for the maximum period of 12 weeks. When his FMLA benefits expired, Heartland Woodcraft terminated Severson’s employment and invited him to reapply when he recovered from the surgery and was cleared to return to work. A few months later, Severson’s physicians cleared him to return to work without restrictions. Rather than reapplying at Heartland, Severson sued Heartland for an alleged violation of the ADA for failing to accommodate his physical disability.
The district court granted Heartland’s motion for summary judgment and the decision was affirmed by the seventh circuit. The gist of the seventh circuit’s ruling is that the ADA cannot be used to protect an employee who is under a complete work restriction for purposes of FMLA. The ADA is intended to apply to individuals who are able to do some work in a limited capacity. Severson did not have a viable claim under ADA because a lengthy leave of absence is beyond the scope of a reasonable accommodation as anticipated by the ADA.
The significance of the Severson case in the workers’ compensation arena is that it includes an extraneous discussion about whether an employer is obligated to accommodate an employee under the ADA in situations where the employer has a policy of offering light duty work to employees with work related injuries and restrictions.
The Severson court noted that an employer “need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation.” Severson, 872 F.3d at 482 (citing EEOC Enforcement Guidance: Workers’ Compensation and the ADA, 2 EEO Compliance Manual, (CCH) Section 6905 at 5394 (September 3, 1996). Significantly, the court went on to say,
"On the other hand, if an employer has a policy of creating light-duty positions for employees who are occupationally injured, then that same benefit ordinarily must be extended to an employee with a disability who is not occupationally injured unless the company can show undue hardship.:
Severson, 872 F. 3d at 482.
The above statement is of concern for Illinois employers because if they are in the practice of creating light duty positions for employees with work related injuries, the Severson holding can be interpreted as requiring them to make the same light duty work available to employees with non-occupational injuries.
The Severson court noted that Heartland did not have a policy of providing light duty work to its employees with work related injuries. At most, a few employees had been given temporary work on a short term, ad hoc basis, when available. There was no evidence of a formal policy of light duty work for employees who were hurt on the job. Thus, under the specific facts discussed in Severson, the employer had no obligation to offer light duty work to employees such as Severson with non-occupational injuries and restrictions. Employers can also take comfort in the fact the Severson court acknowledged that an employer should not be punished for attempting to accommodate employees with a light duty restriction. There is also potential relief for the employer if it can demonstrate “undue hardship.”
Illinois employers should take note of the Severson decision when offering light duty work to employees with work related injuries. If the employer establishes a formal program of light duty work in such instances, the ADA could require the employer to offer the same light duty work to employees with non-occupational injuries. The Severson case can also put employers in a Catch 22 where the workers’ compensation claim is denied. An employee with a workers’ compensation claim and light duty restrictions could make a demand on the employer for light duty work. If this request is rejected because the workers’ compensation claim has been denied, the employee can then make an alternative request for a light duty accommodation under the ADA. Under Severson, the employer could be seen as having to accommodate the light duty restriction under either scenario assuming there is a light duty program in place for employees with work related injuries.
Practice Tips in Light of Severson
The Severson ruling may cause Illinois employers to balance their desire to offer light duty work to employees with work related injuries with the concern of running afoul of ADA with regard to employees with non-occupational injuries. The court’s opinion in Severson gives us some guidance as to how to manage this. For one thing, it is a good idea to not have a formal, written policy in place of offering light duty work to employees with work related injuries. The employer in Severson was found not to be in violation of the ADA because it used an informal, ad hoc arrangement for placing injured workers at light duty. Employers are advised to follow an informal, individualized approach in offering light duty to employees with work related injuries. Light duty job offers should be made on a temporary, case by case basis.
The Severson case is more of a concern for larger employers that have a written and/or longstanding policy of offering light duty work to employees with occupational injuries. If these employers intend to maintain such a policy, they will have to be mindful of the consequences under the Severson case and the ADA. Employers that choose to maintain a policy of accommodating light duty restrictions for employees with occupational injuries have to make similar accommodations with non-occupational injuries.