Many employers limit “transitional work” or “light duty” to individuals with work-related injuries. But is such a practice lawful? Most believe it is. Many years ago, in fact, the EEOC specifically endorsed the practice, with some caveats, in its Enforcement Guidance on the ADA and Workers’ Compensation. However, in a September 2009 EEOC press release announcing an ADA lawsuit filed against Supervalu-Jewel Osco, the EEOC reported it was challenging rules that limited light duty to individuals with work-related injuries.
The EEOC also has some history of challenging such policies under the Pregnancy Discrimination Act. See, for example, the suits brought in EEOC v. WinCo Foods, Inc., 2006 U.S. Dist. LEXIS 64521 (E.D. Cal. 2006) and EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000).
Private litigants also seem to be picking up this ball and running. In Germain v. County of Suffolk, 2009 U.S. Dist. LEXIS 45434 (E.D.N.Y. 2009), a New York federal district court denied the Suffolk County Parks Department summary judgment on a claim attacking the Park Department’s policy precluding pregnant officers from working light-duty assignments. In that case, the plaintiff filed both disparate treatment and disparate impact claims and both survived summary judgment. A number of states also have statutes prohibiting employers from denying temporary light duty or transitional duty to pregnant employees if they provide it to other employees similarly restricted in their ability to work (Michigan, Louisiana and Hawaii to name a few).
This trend places in-house legal and HR in a tight spot. Many risk managers believe passionately in the benefits, and cost-savings, associated with light duty or other return to work programs. And many managers fear providing light duty to employees with non-occupational injuries, including pregnancy related limitations, would be either unworkable or undermine the ability to respond effectively to the needs of injured workers.
Some clarity on the EEOC’s current position would be much appreciated. Failing that, or some definitive appellate case law, employers will be exposed to either legal or operational risks no matter which option they choose.