Quick Answer: No—an employer is never required to create a “light duty” position for a disabled employee as a reasonable accommodation. But this shouldn’t end the discussion and the duty to engage in the interactive process.
Although the employer is not required to create a “light duty” position, it may be required to make other reasonable accommodations to permit the disabled employee to work, e.g., “restructuring” a job by modifying the way in which the job can be performed or eliminating, reallocating and redistributing non-essential functions (but never truly essential functions).
The other consideration is whether the employer already has existing “light duty” jobs the employee could be reassigned to work. As will be explained below, such existing “light duty” positions (usually reserved for employees returning from an on the job injury covered by workers’ compensation laws) would be a reasonable accommodation to disabled employees.
The EEOC’s Position on “Light Duty” Positions
On September 3, 1996, the EEOC issued “Enforcement Guidance: Workers’ Compensation and the ADA.” The EEOC defines the term “light duty” to mean positions created specifically for the purpose of providing work for employees who are unable to perform some or all of their normal duties.
The EEOC’s position is an employer cannot reserve existing, vacant light duty jobs for on-the-job injuries; rather, the employer must consider reassigning any disabled employee (including disabled employees without on-the-job injuries) to such an existing light duty job if it is vacant and if it is needed by the employee as a reasonable accommodation. However, the EEOC also takes the position an employer may create light duty solely for employees who are injured on the job.
Therefore, to the EEOC the critical distinction is whether the light duty position is created or already exists at the time of the request for accommodation. If the employer has existing, vacant light duty positions, all disabled employees are eligible for it as an accommodation, regardless of the cause or location of the disability, e.g. whether employees are deemed disabled because of an occupational injury or disabled for any other reason. On the other hand, if the employer creates a light duty position, the created position can be reserved for employees who are injured on the job; there would be no duty to create a light duty position for disabled employees not injured on the job.
The EEOC explains its position regarding “light duty” as an accommodation in three questions and answers as follows:
27. Does the ADA prohibit an employer from creating light duty position for an employee when s/he is injured on the job?
No, in most instances. An employer may recognize a special obligation arising out of the employment relationship to create a light duty position for an employee when s/he has been injured while performing work for the employer and, as a consequence, is unable to perform his/her regular job duties. Such a policy, on its face, does not treat an individual with a disability less favorably than an individual without a disability . . ..
* * *
An employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation. The principle that the ADA does not require employers to create positions as a form of reasonable accommodation applies equally to the creation of light duty positions. However, an employer must provide other forms of reasonable accommodation required under the ADA. . . . Accordingly, an employer may not avoid its obligation to accommodate an individual with a disability simply by asserting that the disability did not derive from an occupational injury.
In some cases, the only effective reasonable accommodation available for an individual with a disability may be similar or equivalent to a light duty position. The employer would have to provide that reasonable accommodation unless the employer can demonstrate that doing so would impose an undue hardship.
Example: R creates light duty positions for employees when they are occupationally injured if they are unable to perform one or more of their regular job duties. CP can no longer perform functions of her position because of a disability caused by an off-the-job accident. She requests that RO create a light duty position for her as a reasonable accommodation. R denies CP’s request because she has not been injured on the job. R has not violated the ADA. However, R must provide another reasonable accommodation, absent undue hardship. If it is determined that the only effective accommodation is to restructure CP’s position by redistributing the marginal functions. And the restructured position resembles a light duty position, R must provide the reasonable accommodation unless it can prove that it imposes an undue hardship.
28. If an employer reserves light duty positions for employees with occupational injuries, does the ADA require it to consider reassigning an employee with a disability who is not occupationally injured to such positions as a reasonable accommodation?
Yes. If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship. This is because reassignment to a vacant position and appropriate modification of an employer’s policy are forms of reasonable accommodation required by the ADA, absent undue hardship. An employer cannot establish that the reassignment to a vacant reserved light duty position imposes an undue hardship simply by showing that it would have no other vacant light duty positions available if an employee became injured on the job and needed light duty.
Example: R has light duty positions which it reserves for employees in its manufacturing department when they are unable to perform their regular job duties because of on-the-job injuries. CP, an assembly line worker, has multiple sclerosis (MS) which substantially limits a number of major life activities. Eventually CP is unable to perform the essential functions of her position, with or without a reasonable accommodation, because of the MS. As a reasonable accommodation, CP requests that she be reassigned to a vacant light duty position for which she is qualified. R says that the vacant light duty position is reserved for employees who are injured on the job and refuses to reassign CP, although it would not impose an undue hardship to do so. R has violated the ADA by refusing to reassign her to the vacant light duty position.
29. If an employer has only temporary light duty positions, must it still provide a permanent light duty position for an employee with a disability-related occupational injury?
No. The ADA typically does not limit an employer’s ability to establish or change the content, nature, or functions of its positions. So, for example, an employer is free to determine that a light duty position will be temporary rather than permanent. Thus, if an employer provides light duty positions only on a temporary basis, it need only provide a temporary light duty position for an employee with a disability-related occupational injury.
Jurisprudence Regarding Light Duty Positions and the ADA
The Fifth Circuit has routinely held an employer has no obligation to create a new “light duty” position for a disabled employee. Burch v. City of Nacagdoches, 174 F.3d 615 (5th Cir. 1999) (holding city did not need to create light duty job for firefighter to return to work; “because of the small size of the Fire Department, it has no permanent light-duty positions.”); Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997) (“An employer is not required to create “light duty” jobs to accommodate.”); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir.1996); see also Bailey v. Napolitano, 2012 WL 1658790, * 9 (N.D. Tex. May 11, 2012) (employer articulated a legitimate, nondiscriminatory reason for denying plaintiff’s request for limited or light duty; the employer did not have limited or light duty assignments available at the time of plaintiff’s request, and its policy was limited and light duty assignments were dependent upon work being available and the available duty functions the employee was capable of performing).
Although not directly challenged under the ADA, there are several Fifth Circuit cases in which courts have tacitly honored an employer’s policy of reserving light or limited duty positions for employees injured on the job. See Hernandez v. Aldine Independent School District, 1999 WL 33659718 (5th Cir. March 18, 1999) (Enforcing policy providing: “light duty work is reserved for employees that have been injured on the job, and who have been restricted to light duty work by a doctor. The work assignment is based on the restrictions on the light duty slip received from the doctor”); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998) (Employer’s policy of reserving light duty program exclusively for employees suffering from work-related injuries did not violate the Pregnancy Discrimination Act); Randall v. Methodist Hospitals of Dallas, 1997 WL 446437, * 3 (N.D. Tex. July 15, 1997) (Plaintiff was temporarily reassigned to light duty work in accordance with Methodist’s policy for employees injured on the job). Again, to date there do not seem to be any Fifth Circuit (or district court cases within the Fifth Circuit) opinion on the EEOC’s requirement regarding existing light duty jobs or otherwise commenting on the EEOC’s enforcement guidance.
One federal court of appeals to address the issue did not adopt the approach taken by the EEOC. In Dalton v. Subaru-Isuzu, 141 F.3d 667 (7th Cir. 1998), the court considered whether the employer could reserve light-duty positions for employees recuperating from recent injuries who had temporary disabilities. The employer’s program limited the light duty positions to 90 days; they were temporary positions. Plaintiffs argued they should be allowed to permanently occupy the light duty positions as an accommodation under the ADA. The court stated these positions could be reserved for employees with on-the-job injuries who were temporarily disabled. The court stated:
The ADA does not compel an employer to reduce the number of bona fide temporary jobs it has set aside in conjunction with a program like the one contemplated by the state worker’s compensation statute and to convert them to permanent positions for its disabled employees. The ADA does require that [Defendant] make its light-duty program available to disabled employees who are recuperating from temporary restrictions and are otherwise qualified to participate.
However, the court in Stephenson v. United Airlines, Inc., 9 Fed.Appx. 760, 765 (9th Cir. 2001), suggested a policy limiting light duty job to work-related injuries might be illegal. United relied on a per se policy prohibiting light or modified duty for non-occupational injuries or illnesses as a justification for not conducting an interactive individualized inquiry into the facts of plaintiff’s disability. Without ruling on the merits of the ADA claim, the Ninth Circuit found that employers must engage in an interactive, individualized dialogue with employees to identify potential options which might serve as a reasonable accommodation. Id. at 766. Furthermore, it found employers may not unilaterally adopt or apply policies in a manner that circumvents their obligations under the law. Therefore, the Stephenson court held “employers may not apply policies in a manner that discriminates against individuals otherwise qualified as disabled under the ADA.” Id. The court further stated United’s “argument that its light or modified duty was non-discriminatory because it applied equally to all employees neglects to consider its duties under the ADA. An employer may not unilaterally adopt a policy exempting it from its obligations under the ADA even if the policy is otherwise uniformly applied to all employees.”
The Takeaway: An employer would be well advised to consider reassigning existing “light duty” positions to a qualified, disabled employee as a reasonable accommodation, even if the employee was not injured on the job or a part of a workers’ compensation program. That said, even disabled employees who are transferred to the existing “light duty” as a reasonable accommodation must abide by the policies creating the “light duty” position; as such, if there are limitations to the “light duty” position (e.g., the light duty position is only available for a finite period of time or when the employee reaches maximum medical improvement), such restrictions would also apply to disabled employees. If the employer expects the “light duty” job to be temporary, they should clearly state so in writing during the interactive process.