Time loss compensation, also known as temporary total disability payments, represents the largest expenditure associated with workers' compensation claims. Temporary total disability payments are calculated as a percentage of wages. RCW 51.32.060. "Wages" are defined as monetary payment in addition to the value of "board, housing, fuel, or consideration of like nature" to those items." What the Washington Legislature meant by the phrase "other consideration of like nature" has been the subject of much controversy. In Cockle v. Department of Labor & Industries, 142 Wn.2d 801, 16 P.3d 583 (2001), the Washington Supreme Court interpreted concluded that the phrase includes the reasonable value of employer-provided health insurance.
An employee is entitled to time loss compensation or temporary total disability payments while "temporarily, totally disabled" as a result of an industrial injury or occupational disease. RCW 51.32.090. An employee is temporarily and totally disabled if they are unable to perform any form of reasonably continuous gainful employment. See Hubbard v. Department of Labor and Industries, 140 Wn.2d 35 (2000). Thus, there is no specified limit on the time period over which "time loss" compensation may be paid. Instead, the employer's obligation to pay temporary total disability continues until the injured worker's condition becomes medically fixed and stable or until the worker is able to perform any kind of work. Hunter v. Bethel School Dist., 71 Wn. App 501, review denied, 123 Wn.2d 1031. (1993).
To minimize exposure to time loss compensation, it is therefore crucial to return the injured worker to some form of work. In fact, where the employee is able and willing to work on light duty, Washington's Law Against Discrimination, may require the employer to find "light duty" work for the injured employee. See RCW 49.60.180. It therefore behooves an employer to place an injured employee on some type of light duty.
However, when considering light duty positions, the employer must be careful not to inadvertently run afoul of other disability laws or create a permanent light duty position. The generic term "light duty job" may refer to those jobs considered available on a temporary basis only, or they may be regular jobs. Among regular jobs, they may be available as part of the regular job structure, or they may be available only as a means of providing alternative work for employees who are unable to perform some or all of their normal duties in other jobs. An analysis of how placement in a "light duty" job affects an employee depends, in part, upon the employer's basis for having the "light duty" job(s).
While Washington's Workers' Compensation Act provides that an industrially-injured employee who is temporarily totally disabled and rejects an offer of "light duty" work may lose continued benefits, the FMLA does not require the acceptance of "light duty" work. An FMLA-eligible employee may reject an employer's offer of "light duty" work and remain on FMLA leave unless the leave was foreseeable and based on planned medical treatment.1 An employee may voluntarily accept "light duty" work offered pursuant to workers' compensation laws.2 The employee will maintain reinstatement rights under the FMLA during the period of "light duty" work and until exhaustion of all 12 weeks of FMLA leave.3 Moreover, the time spent in the "light duty" position may not be counted against the 12 week leave allotment.4
To avoid inadvertently creating a "permanent" position under the ADA, an employer must also be careful not to adopt a policy of creating "light duty" work for all injured employees and instead should evaluate possible light duty positions for occupationally injured employees on a case-by-case basis. Non-occupationally injured employees must also be excluded from such consideration without violating the ADA.
On the other hand, EEOC guidelines advise that an employer that reserves existing light duty positions for employees with occupational injuries (on either a temporary or regular basis) must consider reassignment of a non-occupationally disabled employee to such positions as part of the reasonable accommodation considerations (i.e. the position must be vacant and the disabled employee must be otherwise qualified.)5 An employer which has only temporary light duty positions need not provide regular (long-term) placement in such a position for an employee with a disability-related occupational injury. Unfortunately however, the EEOC has not resolved whether an employer which has only temporary light duty positions must provide regular (long-term) placement in such a position for a non-occupationally injured employee with a disability.
In sum, to avoid having to pay substantial time loss compensation, employers should attempt to find light duty work for an injured employee. But light duty work is not without its perils. An employer must be careful that in establishing a light duty work position for an employee who was occupationally injured, he or she does not create a permanent position which invokes the ADA or other applicable disability laws. The best way to avoid creating a permanent light duty position is to create light duty jobs on a case by case basis.
1. See 29 U.S.C. § 2612(b)(2); 29 C.F.R. §§ 825.204; 825.207(d)(2); 825.702(d)(2).
2. 29 C.F.R. §§ 825.220(d); 825.702(d)(2).
3. 29 C.F.R. § 825.220(d).
4. DOL Opinion FMLA-55, Wage-Hour Manual (BNA) 99:3052, 3053 (1995).
5. 29 C.F.R. § 1630.2(o)(2)(ii).