Unanswered questions and confusion about restricted duty (who is eligible, when should it be recommended, and what an employer’s responsibilities are) can delay an employee’s return to work, says Tracie DeFreitas, a program leader and director of training, services, and outreach for the Job Accommodation Network. Get insights and perspectives in this episode!
JAN resources referenced in this episode:
- Light duty: https://askjan.org/topics/liduty.cfm
- Stay at Work/Return to Work: https://askjan.org/topics/return.cfm
- Pregnancy: https://askjan.org/disabilities/Pregnancy.cfm
- Employer-provided Leave and the Americans with Disabilities Act: https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act
- Enforcement Guidance: Workers’ Compensation and the ADA: https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada
- Regulations to Implement the Pregnant Workers Fairness Act: https://www.federalregister.gov/documents/2023/08/11/2023-17041/regulations-to-implement-the-pregnant-workers-fairness-act
- Creating More Effective Return-to-Work Pathways podcast episode
- DMEC accommodation resources
- DMEC website
DMEC: Welcome to Absence Management Perspectives: A DMEC Podcast. The Disability Management Employer Coalition, or DMEC, as we're known by most people, provides focused education, knowledge and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 18,000 professionals from organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you'll visit firstname.lastname@example.org to get a full picture of what we have to offer, from webinars and publications to conferences, certifications, and much more. Let's get started and meet the people behind the processes.
Heather Grimshaw: Hi, we're glad you're listening. I'm Heather Grimshaw, Communications Manager for DMEC, and in this episode of the podcast, we'll be talking about restricted duty with Tracy DeFreitas, a program leader and director of Training, Services and Outreach for the Job Accommodation Network (JAN). So Tracy, I'm hoping you will set the stage for listeners in terms of what restricted duty is when it comes into play and what some of the most common points of confusion are for employers.
Tracie DeFreitas: Sure, I can do that. Restrictive duty, it's sometimes referred to as light duty or modified duty, but essentially, it's a temporary work assignment that's provided to an employee who might be recovering from an injury or some sort of health condition that might be a disability or even pregnancy and related medical conditions. And maybe they're unable to perform their regular job duties at full capacity. So we're looking at making some modifications, some adjustments to the type of work they might do because of limitations they might be experiencing. It typically involves maybe assigning an employee to tasks or responsibilities that accommodate their specific medical restrictions or their limitations because it allows them to return to work or continue working and remain productive for some time. So to kind of think of it as adjusted job duties, that can address some of the limitations they might be experiencing, typically for a temporary period of time. You asked too when it might come into play. Well, it might come into play when someone's unable to perform their regular job duties due to, like I said, a medical condition, but maybe they're able to return to work with some specific restrictions. So it might be sort of a key component of an organization's return-to-work program where it might be necessary in order to comply with Workers’ Compensation or the Americans with Disabilities Act (ADA) in some way. We know that light duty can help employees gradually ease back into their regular job duties because they're given the opportunity to go ahead and perform some alternative tasks that can be completed within those restrictions they might have. It also helps employers keep people working, right? So it can be certainly an excellent way to continue with some productivity and also meet the individuals and employers’ needs. At the same time. I think you also mentioned something about common points of confusion too. So I know that sometimes it's not always clear when somebody might be eligible for restricted duty or light duty, or when it might need to be offered, I think. So one of those common points of confusion can be around figuring out when an employee is eligible to be afforded either a light duty job or assigned light duty tasks. There can be some interplay between maybe the Americans with Disabilities Act and state workers compensation laws and some confusion around what responsibilities might lie there for the employer. And so it can be unclear who qualifies to receive light duty or be under restricted duty, and what the employer's responsibilities might be based on any legal requirements related to providing restricted duty. Another point of confusion I can think of centers around maybe identifying suitable tasks for employees on restricted duty. So is it that the employer needs to create tasks or assign the employee to a different role temporarily? Or maybe simply excusing some functions of the job in some cases. And so there can be a lot to consider. But ultimately the goal is to kind of identify a way that enables the employee to be productive within their restrictions and also meet those business needs. One final thing I can think of maybe is also that when there isn't effective communication with employees or maybe their healthcare provider throughout the return-to-work process or the accommodation process relating to defining restricted duty, this can cause some confusion. So what I mean is, if maybe someone is placed on restricted duty or the healthcare provider says they need light duty, but it's not really defined according to the employee's impairment or limitations in the job duties. And the employer might not have any idea how to modify the job duties if they don't have some specific information about what light duty means. We kind of look at light duty or restricted duty as kind of a nebulous term. It doesn't really make clear to the employer what someone can or cannot do. So in that instance, you might have to seek some clarification from the healthcare provider about specific limitations or restrictions affecting the person's ability to work, what weight not to lift or push or pull, or what distance not to walk, or what duration is okay for standing or sitting, things like that. So that communication can cause, or lack of communication, I should say, can cause some confusion when an employer receives that information and it simply says this person needs light duty. Well, we don't know what that means in relation to the type of work that that person has to complete. So the lack of clarity really makes it difficult to identify suitable accommodations and provide a job or a work environment or the tasks that could fall within the restrictions the person might have. So that light duty can have a lot of different meanings in different employment settings. And so if the employer doesn't understand what the healthcare provider believes a person should be restricted in doing, if they have an inaccurate understanding of their condition, the capabilities and the limitations affecting the ability to do the job, it's really difficult to move forward in that process of providing a solution that will keep that person working or returning them to work. And so I would say that typically I suggest that if employers receive a request like that, ask some clarifying questions, come back to the table, you can talk with the individual and certainly get their understanding of what it is they believe they're going to have difficulty doing. But if you feel like you need to get some clarification from the healthcare provider under the right circumstances, you can certainly ask additional questions. So what does light duty mean for this particular individual? What are their specific limitations and how does this affect their ability to perform? What would be the essential duties of the job? So it's okay to come back and get some additional information in order to have that path forward and provide a solution that will hopefully work.
Heather Grimshaw: How many employers have this laid out or specified in advance of an employee needing an accommodation or something to help that employee return to work? Or is this a little bit of a nebulous category here?
Tracie DeFreitas: I would say that employers probably it's probably a common practice for them to include a restricted duty policy or maybe in their accommodation policy, some ideas around what restricted duty or light duty looks like. So it might be part of their return-to-work policy or an accommodation policy. So I would say that's probably a common practice. I can't say how many employers perhaps might have that, but I think it's helpful to maybe provide some information within a policy of that nature that explains what constitutes restricted or light duty. But with that, I think it's also important to ensure that it makes clear that more information might be needed to address the unique needs of the employee. So I think it's important to maybe provide some examples of tasks or responsibilities that are typically offered to employees on restricted duty, but to also make it clear that we have to engage in an accommodation process or a return-to-work process in a unique way. So make sure that we don't do apply a one size fits all approach, look at the individual's specific needs, but make sure those people who are responsible for moving forward have an understanding that just the term light duty doesn't necessarily tell them everything they need to know. So what would be the next steps then in that situation to ensure that you can get the information needed to go ahead and provide some sort of restricted duty type assignment or tests or maybe reassigning someone to a light duty program or position if you have that.
Heather Grimshaw: We had a podcast episode recently with a physician who was talking a little bit about some of the confusion that healthcare providers have if they don't know about modified duties or ways that an employee can return to work without jumping right back into the previous role. And so that also factors in there. It seems like a bit of a confusion point of who should get that information and when. I guess to make sure everybody is in that loop, as you mentioned earlier, the communication is key or lack of communication can also be a problem there.
Tracie DeFreitas: Absolutely. And just to comment on that too, Heather, we do rely on healthcare providers and other appropriate professionals to provide information about a person's impairment and their restrictions. But oftentimes they might simply say light duty or restricted duty. And they might not define that because they might not know what that means to the employer or the individual in their circumstances. So they may not know necessarily what else to offer. They just know that this person might not be able to perform the essential duties of the job they're currently in because they might be too physically or mentally demanding. So they kind of use that term as a way to say this person needs to do something that is different than what they're currently doing. So I think part of the process is just, again, improving that communication, getting the information that's needed by being more specific with that healthcare provider when it's necessary.
Heather Grimshaw: You mentioned the Americans with Disability Act earlier, and I'm wondering how the Americans with Disabilities Act applies when an employee requests restricted duty. And this is a little bit of a tack on to this question. Is it fair to assume that employees request restricted duty or is this something that the employers recommend or the healthcare provider recommends?
Tracie DeFreitas: Yeah, well, I would say that a request for restricted or light duty needed for a medical reason will trigger the accommodation process. Right. So with that knowing that when an employer is faced with those knowing there's a reason related to a medical condition that somebody needs a modification right, in doing their job, we know the ADA comes into play there. And so for that reason, it is important for the employer to engage in the accommodation process with the individual. They might have to gather some information to determine why the request is being made, whether the employee has an ADA disability or an injury of some sort, and then determine whether restricted or light duty is a reasonable accommodation. So there's some responsibility there to engage in the process based on what is known at that point. It doesn't always mean the person is going to have an ADA disability or that they're entitled to an accommodation of restricted or light duty, but you have to engage in that process in order to move forward and figure that out. Right. So it's really important to keep that in mind. And that's where I think we always have to recognize when an accommodation request is being made. When we look at light duty as an accommodation, it's temporary, or it could be permanent work that's physically or mentally less demanding than the employee's normal job duties, and it can look a lot of different ways. So we have to look at that accommodation situation case by case with the question of whose responsibility is it, basically? Does the individual ask for it? Does the employer decide that it's going to be provided? If we look at it from an accommodation standpoint, it's typically the individual making it known to the employer that they need restricted duty or light duty, and that might come via their healthcare provider in a note. It could come from a formal request that is made for accommodation. It could come from a conversation with the person's supervisor or manager as a start where they might notice that they're having some difficulty performing job duties. So it could start in a lot of different ways. As far as the employer, are they recommending it restricted or light duty? Not typically. I think that if the employer has a reason to believe that somebody is having difficulty performing their job duties because of a known medical condition, then that's where you have that conversation. We need to talk about what's going on and figure out what the person's needs might be and whether there's a medical condition involved. So there are times when an employer might sort of broach that topic with the individual based on what's known. But ordinarily I'd say it's more so, going to be a request for restricted or light duty, and that's how we trigger that accommodation process.
Heather Grimshaw: Okay, great. I'm hoping you'll talk a little bit about restricted duty requirements for the Pregnant Workers Fairness Act (PWFA). And kind of on a broader level, I'm wondering if restricted duty is available, really to anyone who needs an accommodation.
Tracie DeFreitas: Okay, yeah, absolutely. This is certainly a law that's on everyone's mind right now, but I'm going to preempt my comments with a reminder that the regulations to implement the PWFA are only proposed at this time. The public comment period ended, and hopefully we'll have some final regulations from the EEOC in a couple of months. But I can kind of share our understanding of light duty, maybe as an accommodation under the PWFA based on the proposed regulations. So I would say to kind of keep it simple, like under the ADA, light duty might need to be provided as an accommodation for workers with known limitations related to pregnancy or childbirth or related medical conditions, of course, unless an undue hardship would result. So I think it's fair to say that the ADA principles related to providing light duty or restricted duty, including assignment to light duty or placement in a light duty program, those will apply under the PWFA. And I say that because a lot of what we're seeing in the PWFA regulations. It's modeled after the ADA, right? There is an exception. Under the PWFA, an employer might need to accommodate the inability to perform one or more essential functions of a job by temporarily suspending the requirement, which is different than what we see under the ADA. Under the ADA, employers are not required to remove essential job duties as a form of accommodation. So that is something I would say is a bit different from a PWFA standpoint when we're thinking about light duty or restricted duty as an accommodation. The other thing too is from an ADA standpoint, when we take away an essential job duty, we expect that people must be able to perform the essential job duties with or without accommodation. And there's no duty under the ADA to remove an essential job duty to provide an accommodation. But that's different from a PDA standpoint. So I think that's something that we're going to see is a little bit different and employers are going to have to try to figure out how to navigate that. Keeping in mind that it's a situation that is temporary. We know that it's typically going to be a temporary situation, so they might need to suspend that duty. Maybe it creates a light duty position as a result of doing that. It might mean temporarily transferring the person into a position that would be light duty in nature or maybe even assigning them to a light duty program if there's a position available within that. So I think at the end of the day we are looking at accommodations that are similar to what we've seen under ADA with some exceptions for pregnant workers as it relates to suspending essential job duties. Now, having said that, I've said a lot about it. The ADA knowing that it's always okay to go above and beyond compliance. And certainly at JAN, we like to look at things that way. Because in any scenario, if you have somebody who is having some difficulty doing their job and there's some way to provide some assistance to make a modification in order to enable them to return to work or continue working, doesn't it make good business sense to do so? Certainly. I would say consider the beyond compliance approach, whether it's ADA, PWFA, or just somebody who maybe has a temporary injury as well. So just some food for thought there.
Heather Grimshaw: That's a great point and I think the more we hear people talk about how returning to work can actually be therapeutic and help people heal in myriad ways, it's a really helpful reminder to think about that ability to go above and beyond.
Tracie DeFreitas: Absolutely. And I think sometimes it's easy enough to make a modification without getting too bogged down in all the compliance issues. So why not do it? I think it just makes sense, especially in those temporary situations too. If you've got somebody who is temporarily restricted, it's maybe not a major restriction, but it does affect them in performing some of their job duties. If you know it's going to be temporary and it will not really create much difficulty, you can go ahead and make those changes. So it's certainly something to consider.
Heather Grimshaw: Yeah, I appreciate you saying that. I've heard you speak at previous DMEC conferences. Also about trial accommodations and really encouraging employers to assess what might be possible, again, as you said, within a temporary situation or time frame to see if it works, which also shows good faith on the part of the employer and I can only assume would make an employee feel valued and as though the employee or employer is trying to keep that person at work, which is also valuable.
Tracie DeFreitas: Absolutely, yeah, we talk a lot about trial and temporary accommodations because it certainly is a good best practice, I think, to implement when you know it's going to resolve a situation, keep somebody working and still meet the employer's business needs.
Heather Grimshaw: Absolutely, it really does sound like that. I know this is a cliche to say, but win-win there right for everyone. And I know that you have some really helpful resources on the JAN website in terms of accommodations and ways to approach those. So we'll make sure to link to that in the notes section of this episode.
Tracie DeFreitas: Great.
Heather Grimshaw: I think as a final question for you today, I'm curious about what some of the most common questions your team at JAN fields from employers regarding restricted duty or light duty.
Tracie DeFreitas: Well of know, we get the questions about whether restricted or light duty is required as a reasonable accommodation, which we've covered quite a bit here. We also get questions about does an employee have to be 100% healed, meaning no restrictions in order to return to work. We have those situations where an employer might say, no, you can't come back until you have no restrictions at all. And that's not the best response because we know that the whole idea behind accommodating someone it's because they might have some restrictions or limitations preventing them from performing certain job duties. So having a 100% healed policy, for example, could certainly violate the ADA. So you want to be careful there. You want to make sure that you're looking at whether it's possible to provide an accommodation to get somebody back to work or to keep them working and not applying a policy like that. I would say some other things. We get questions around whether workers compensation, if somebody has a worker's comp injury, how does the ADA come into play in those situations? We know that an individual with an injury covered under Workers’ Comp may be protected by the ADA as well, but it's not an automatic protection. You still have to figure out does this person have a medical condition and injury that is going to rise to the level of a disability under the ADA. So where those two laws can certainly run in tandem with each other. They don't always automatically so sometimes we get questions around that, and quite commonly we get those questions about whether an employer has to remove functions from an individual's job as an accommodation to allow them to have a late duty assignment or to work under that restricted duty that's been requested. And we've talked a good bit about that too. So I would say that those are probably some of the more common questions, aside from just really addressing individual circumstances related to specific jobs and types of restrictions people might have.
Heather Grimshaw: Yeah, we do have a few articles on that concept or that policy of 100% Healed, so I'm glad you brought that up and I'll make sure to include links to those resources in the Notes section as well.
Tracie DeFreitas: I would also mention EEOC has some really great information in their employer provided leave in the ADA resource, around 100% Healed policies. And actually we have some as well, so certainly want to get people to that askjan.org site, but you can go ahead and mention some of those resources in the Notes too. So we have one resource on light duty and another related to return-to-work policies that might also be helpful through our A to Z list.
Heather Grimshaw: Perfect, thank you so much. Yes, we will make sure to have all those included in the Notes section, and I appreciate you mentioning the EEOC resource as well, so I'll make sure to include that link too. One of the things that we do hear from DMEC members as well as our reviewers commenting on @Work magazine articles is that one of the things they realize is that when someone is off work or is taking a leave of absence and you're looking at a return to work program and a light duty or restricted duty. It flags for folks that they might not have updated the job description in a timely manner so they can identify those. And I hear you laughing a little bit, so it is something that I'm sure you're very familiar with.
Tracie DeFreitas: Yes. So often we know that we don't always keep our job descriptions up to date. Right. So it's something to pay attention to now and then make sure you're taking a look at them. We often use job descriptions as a way to determine what someone's essential job duties are. Now, having said that, the job description is not the end all, be all as it relates to what's expected in a position, but it certainly can be helpful to have some of that information defined, knowing that you might also have to look to other resources to figure out what the essential duties are. So that might be this person's supervisor or manager who is familiar with what goes on every day. It could also be other people working in a specific job who might be able to say, yeah, these are the duties that are actually expected of us on a regular basis. So kind of keep that in mind, too. But that's relevant in looking at restricted duty and light duty and what somebody might be expected to perform. Take a look at your job descriptions every now and then.
Heather Grimshaw: Exactly. Yeah, it does all come full circle, seemingly with this piece. So I so appreciate you shedding some light on this issue. It's one of the things we hear members talking about and asking about frequently. So this will be very helpful. I appreciate your time today. Thank you.
Tracie DeFreitas: Great. Thank you, Heather.
Before we end this episode of the podcast, I wanted to mention that DMEC has recently released a Building a Return-to-Work Program Microcredential Course, which has some information about restricted duty. So please check out the new microcredential course and you'll find the link in the notes section of this episode.