Employers should seriously consider the ADA implications of light duty jobs before creating (or continuing) such jobs on a regular basis. The ADA requires employers to "accommodate" disabled employees, under some circumstances, by placing them in other, vacant positions (which they can perform with or without an accommodation). Accordingly, the existence of light duty jobs can obligate an employer to retain and transfer disabled employees who are unable to perform their jobs and who would not otherwise have to be retained.
Vacancy Causes Obligation
In Smith v. Midland Brake (1999), the Tenth Circuit (which has jurisdiction over Utah) ruled that an employer must offer a disabled employee (who cannot do his current job even with an accommodation) a transfer to another position if there is a vacancy and if the employee can perform the other job (with or without an accommodation). The employee must be given the vacant job even if other employees are more qualified as long as the employee meets the job's minimum qualifications. However, an employer does not have to create a new job; nor does it have to alter the basic duties of an existing job.
Normally, the ADA requires an employer to accommodate a disabled employee in his current job to the extent that such an accommodation is "reasonable." Nonetheless, the employer can insist that the employee be able to perform all of the essential functions of the job even if they involve "a multitude of tasks in a wide range of environments." If the employee cannot perform all of these functions even with an accommodation, the employee may be terminated without violating the ADA. The situation may change, however, if the employer regularly provides light duty employment. Then the employee would be entitled to be given a light duty assignment were such a position available.
No Light Duty Positions Defense
The fact that an employer did not have regular light duty jobs proved to be a winning defense in a recent ADA case decided by the Tenth Circuit. In Martin v. Kansas (1999), the employee could no longer perform all of his job duties due to arthritis. He could, however, perform that portion of his duties to which he was currently assigned (which involved only light duty work). He asked to be accommodated by being given his current assignment on a permanent basis. The employer refused, and the employee sued under the ADA. The court ruled in favor of the employer because:
- the employee could not perform all of the essential functions of his job, and
- "no permanent light duty positions existed" and "the ADA [does not] require [an employer] to create such a position."
In sum, employers should be aware that if they regularly provide light duty jobs, they may be required to give employees permanent light duty assignments under the ADA. Employers wishing to avoid this obligation may choose to eliminate light duty positions or limit them to special, temporary assignments. As with many employment-related issues, the establishment of clear policies and regular administration of procedures can help protect your business from unwanted liability.