Does the FMLA require same pay for light-duty work?
Issue:

Susan, a utility driver for your company, injured her rotator cuff in a work-related accident. She applied for workers’ compensation and took a light-duty position a week later. She continued in the light-duty job after surgery because lifting restrictions and other limitations prevented her from returning to her position as a driver. Susan remained in the light-duty job until her employment ended several months later.

In the light-duty position, Susan was paid $3.25 per hour less than her regular rate of pay as a driver. After her employment ended, she filed suit to recover the pay differential between the salary she earned as a driver and the pay she received while working the light-duty job. Susan argued that she had been working on Family and Medical Leave Act (FMLA) light duty and that, although she was not on “traditional leave” under the FMLA, she had substituted the light-duty work in lieu of leave. Therefore, she asserted, she was entitled under the FMLA to the hourly rate of pay she would have received as a driver. Is she correct?

Answer:    

No. In a case with similar facts, the Seventh Circuit noted that there is no such thing as “FMLA light duty.” According to the court, the only regulatory provision that even mentions light duty is a clause that states an employee may take workers’ comp. light duty or continue with unpaid FMLA leave.

An employee on FMLA leave may be denied workers’ compensation, the court noted. The reverse, however, is not true. An employee does not “trade off” his or her FMLA rights by accepting a light-duty assignment while recovering from a serious health condition. The employee continues to enjoy restoration rights to the same or equivalent position upon return from leave. However, while the FMLA allows employees to be restored to their former position, restoration is not required if, at the conclusion of leave, the employee is physically unable to perform the essential functions of his or her position.

In the case at hand, although it was unclear whether the employee actually took FMLA leave, even if she had taken FMLA-protected leave, she was unable to perform her utility driver job due to her work restrictions. Thus, she was not entitled to return to that position or to an equivalent position.

“The FMLA does not provide for paid leave nor does it dictate the wage rate for an employee to receive while on light duty under a workers’ compensation plan,” the appeals court wrote in conclusion.

Cite: Hendricks v. Compass Group, USA (7thCir 2007) 154 LC ¶35,322.
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