March 2014 Volume XIII No. 3 Taking Care of Business
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There Is No Such Thing As “FMLA light duty”

Lauren Kroeger
Lauren Kroeger

The Family Medical Leave Act (“FMLA”) makes it unlawful for an employer to interfere with an employee’s rights to unpaid leave under the FMLA. To succeed in an FMLA interference claim, an employee must show that: (1) he was eligible for the FMLA protections; (2) his employer was covered by the FMLA; (3) he was entitled to take leave under FMLA; (4) he provided sufficient notice of his intent to take leave; and (5) his employer denied him FMLA benefits to which he was entitled.

While an employee may ask for certain FMLA benefits, employers must carefully review medical documentation to determine whether the employee is actually entitled to the FMLA benefits which he seeks. An employee on FMLA leave has the right to be restored to the same or an equivalent position that the employee had before he took leave. However, if the employee cannot perform an essential function of his original position because of a physical or mental condition, the employer has no duty under the FMLA to return the employee to his position. It is therefore critical for the employer to review the essential functions of the job, and the specific restrictions contained in the physician’s release for the employee to return to work.

If the employee’s physician releases him to return to “light duty” work – a restriction which prevents the employee from performing an essential function of his original position – the employer has no duty under the FMLA to return the employee to his original position. James v. Hyatt Regency Chicago, 707 F.3d 775, 781 (7th Cir. 2013). The Seventh Circuit Court of Appeals in Hyatt, in affirming judgment for the employer on the employee’s claim for interference with FMLA rights, held that “there is no such thing as ‘FMLA light duty’”. In addition, the Court affirmed judgment for the employer on the employee’s FMLA retaliation claim because the employer’s decision to deny the employee’s request to return to work did not violate the FMLA and was not a materially adverse employment action.

Employers Cannot Require Employees To Work During FMLA Leave

The “light duty” issue discussed above must be distinguished from “light duty” offered to an employee as an alternative to the employee taking FMLA leave. While employers are certainly within their rights to offer “light duty” work to employees, employers cannot force employees to take a “light duty” assignment instead of FMLA leave. To the contrary, an employee may decline a “light duty” assignment and remain on unpaid FMLA leave until he exhausts the 12-week entitlement. 29 C.F.R. §825.207(d)(2). This is consistent with the general rule that an employer cannot require an employee to work while he is on FMLA leave.

But what if an employee who is on FMLA leave performs work during the leave? Courts have recognized occasional work-related calls and e-mails as “professional courtesy” that do not interfere with FMLA leave. However, employers should be cautious when the employee who is on leave is non-exempt under the Fair Labor Standards Act, as he or she could make a claim for work performed during an unpaid leave of absence.


If you have any questions about FMLA, contact your Hoeppner Wagner & Evans LLP relationship attorney.


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