The issue of employee compensation when moved to another job while on Family and Medical Leave (FMLA) has always been confusing. It is clear, under the FMLA, that an employer cannot force an employee to return from leave to work on a “light duty” job if the employee will not be performing their own job. A recent Seventh Circuit Court of Appeals decision provides some guidance as to the employer’s options when an employee does decide to accept a light duty position.
In Hendricks v. Compass Group USA, Inc., the plaintiff was injured and could not perform her usual driving duties. Instead, she accepted reinstatement to a light duty position offered by the company under its workers’ compensation program. She was assigned to office work which paid $9.00 as opposed to the $12.23 per hour she had earned as a driver.
The plaintiff then filed a lawsuit seeking to recover the difference between her regular hourly pay and her light duty pay. Both the lower court and the appeals court, however, found that the FMLA did not provide for light duty work. In fact, when an employer offers light duty work under its workers’ compensation program, the employee may reject the offer and continue on unpaid FMLA. However, under some workers’ compensation laws, an employee who declines an offer of light duty work may no longer be able to collect workers’ compensation benefits.
The court acknowledged that employees may receive workers’ compensation payments while on FMLA, and an employer may not require employees to use paid leave time while they are receiving workers’ compensation. Nevertheless, the FMLA does not require an employer to pay a certain pay rate when the employee is physically unable to perform their original job duty and has returned to “light duty.”
Employers should familiarize themselves with the provisions of workers’ compensation in their state and, further, be aware of whether the offer of a light duty job may terminate workers’ compensation benefits under such laws. However, employers must not confuse situations in which (1) employees choose to return to work on light duty after being out for an injury, and (2) employees who are moved to another position by the employer because of the importance of their job position and the negative impact of intermittent FMLA leave. In the latter situation, the employee is still entitled to receive full payment and benefits at the rate established for their original position.