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Changing your light duty program from a liability to an asset.

Nine months ago, Joe injured his back in a physical altercation with an inmate. As a result, he cannot perform any physically strenuous acts such as grappling with an inmate or rushing to an emergency situation. He is assigned to light duty office work while his back heals, which often means he does little more than answer the phone. Unfortunately, Joe does not seem to get better. His doctor cannot pinpoint the source of the problem, but back injuries are often difficult to diagnose and treat (as Joe often mentions). There has been talk of surgery, but, naturally, Joe wants to avoid that until he is absolutely sure the physical therapy will not correct the problem.

Meanwhile, there have been complaints. Joe looks fine; he does not require crutches or a brace, and he seems surprisingly limber for a person with a back problem. Talk on the floors is that Joe is malingering, and his supervisor wants to know when she will receive a replacement staff member. Finally, in an effort to improve the situation, Joe is assigned to work in a security spot that must be staffed--the control center. Joe is told to answer the phones and control the doors, but if there is a fight or emergency, "just stay out of the way." Despite the best efforts of medical science, Joe's back continues to be a problem for a long, long time. For those correctional employees who can relate to this scenario, their facility's light duty program is an enormous liability.

Behaving Rationally Within the System

Is Joe recovering or malingering? Only he knows for sure, but malingering is a rational behavior with the facility's existing light duty system. His office job was certainly less stressful than working with inmates. His new assignment was day shift with weekends off. He has been given no time limit for his recovery. When he does return to his old position, he is no longer expected to perform pat searches or cell checks, or intervene in violent situations. Joe's back problems may be everything he claims, completely bogus or somewhere in between. However, as long as the benefits of his light duty assignment outweigh the challenges of perpetuating a fake injury, one will always wonder.

A light duty practice must make returning to full duty the best rational choice. If possible, such employees should work light duty on their original shift with the same days off. Their assignments should be productive and valuable, but less personally preferable than their normal work. These employees absolutely should not be allowed to continue in their former role while avoiding those tasks they cannot perform due to injury. Why? Aside from Americans with Disabilities Act (ADA) considerations (described below), the tasks an injured employee cannot perform are almost inevitably the tasks nobody likes to do. A light duty system that allows an employee to perform his or her job but be exempt from unpleasant tasks, encourages prolonged "injury."

While crafting a light duty practice that does not invite abuse, do not be tempted to make it so unpleasant that it coerces employees back to their regular jobs. Scrubbing toilets with a toothbrush on third shift is a transparent punishment for injured workers. It lacks compassion and communicates an inherent distrust (or dislike) of employees. Employees may behave rationally to that system by disguising a real medical problem to remain in their regular jobs. Fortunately, a water-torture light duty program is unnecessary to encourage employees to return to their regular duties. Any less-preferable assignment will motivate a healthy employee to do so. However, it is important to understand individual preferences. For some, a desk job is just the ticket to motivate a return to normal duties, while others will jockey a desk all the way to the retirement finish line if they are allowed.

Light Duty and Federal Law

Be extremely careful about potential legal ramifications while designing a facility's light duty process. On the federal level, light duty practice can easily run afoul of the ADA, the Family and Medical Leave Act (FMLA) and/or the Pregnancy Discrimination Act. Applicable state laws may be even more restrictive. It is important to understand the broad legal issues affecting a facility's light duty policy as it is created; have it thoroughly reviewed by the facility's legal counsel before implementation.

The ADA influences light duty decisions because both evaluate a person's ability to perform essential job functions. Although the ADA generally examines a permanent restriction that may require reasonable accommodation to perform an essential job function, light duty should focus solely on a temporary inability to perform that function. If properly managed, ADA and light duty influence separate realms, but two common practices can blur that distinction. The first occurs when the employer allows light duty to extend for an indefinite period. Eventually, it becomes impossible to defend the position as truly "temporary." If the light duty candidate remains in that position for years and his or her continuing injury qualifies the individual as disabled, it would be difficult to remove the employee from that job under the argument that it was not a "real" position. On the other hand, if the person is given a light duty assignment with a clear time limit as defined by policy and practice, the ADA does not require that the employer maintain the injured individual in that role when the time expires.

The other light duty mistake employers commonly make is allowing the injured employees to continue performing normal duties except those essential functions they cannot perform. Obviously, if a person can perform a job while unable to perform a particular function, that function is not "essential." If that function is not essential, refusing to hire a disabled applicant because he or she cannot perform it violates the ADA. In Joe's case, if he is unable to physically restrain combative inmates or respond to emergency situations and he is assigned to the control center, the employer makes a clear case that these are not the essential functions of that job. When a disabled applicant with similar restrictions requests a control center job, the employer's response that he or she cannot perform the essential functions of that security post will fall on deaf ears when the individual's complaint is investigated by the Equal Employment Opportunity Commission. Alternately, staffing security posts (including the control center) strictly with personnel capable of performing all of security's essential functions supports the assertion that those functions are in fact "essential."

FMLA more directly overlaps light duty. Provided the light duty assignment is voluntary, time spent working light duty can be counted against an employee's 12-week FMLA leave entitlement. Light duty policies must make it clear that light duty time will be counted against the FMLA leave entitlement, and employees should be notified in writing when they start light duty. Furthermore, those who wish to exercise their right to take leave from their employment under FMLA must be allowed to do so. Smart employers take those precautions to allow employees' light duty time to exhaust their FMLA leave entitlement.

The Pregnancy Discrimination Act requires employers to treat pregnant employees at least as well as similarly situated employees with short-term impairments. Therefore, an employer who provides light duty for employees injured outside of work is required to provide equal accommodations for pregnant employees. Both types of employees should be expected to produce documentation supporting the need for a light duty assignment.

Employers can provide more generous policies for pregnant employees than for others with short-term impairments, and many do in order to protect future mothers and unborn children from the hazardous possibilities inherent in security work. Although security work poses obvious risks to the mother or unborn child, employers cannot require reassigned duties even if their other conditions of employment (e.g., pay, hours) are unchanged. For many employers, the best balance is to provide alternate duty opportunities to pregnant employees, communicate those opportunities without coercion and allow pregnant employees to decide for themselves. Note, however, that pregnant employees who continue to perform their normal duties should be held accountable for their performance. A pregnant correctional officer who fails to respond to an emergency, for example, should be disciplined the same as any other.

Designing a Light Duty Policy and Practice

A properly managed light duty program offers many advantages. It reduces the number and duration of workers' compensation claims. For many, being paid to stay home and watch Prison Break quickly becomes preferable to going to work. Light duty allows an employer to monitor the worker's injury and recovery. Malingering employees find it difficult to maintain the facade eight hours a day. Finally, it provides an opportunity to gain productivity for the costs associated with the absence. Almost all employers have simple, tedious work they would love to see finished if only they could spare someone. Light duty assignments are the answer.

An employer's first decisions should focus on who to include in the program. Although some employers provide light duty solely for work-related injuries, others include off-the-job injuries and pregnancies. In those cases, employers must answer numerous questions: Must employees exhaust accrued leave to be eligible for light duty? Is there a minimum absence duration to qualify an employee for light duty? How many light duty positions are available and who receives priority in filling them?

In all cases, light duty assignments should be offered strictly to employees who provide documented proof that they cannot perform essential job functions. Naturally, this requires the employer to identify essential job functions for various positions or job classifications. Essential job functions are likely to be considerably different for various personnel, so a temporary impairment may require light duty for one staff member but not another. A correctional officer with a broken foot cannot perform many of his or her essential job functions, but an administrative assistant with the same injury can hobble to his or her desk and get to work.

Employers must also decide the duration of light duty assignments. There is no magic formula, but it is important to determine a reasonable period of recovery for most injuries without providing extended light duty. Most temporary impairments (e.g., soft-tissue injuries, broken bones) will heal sufficiently within a few months, so many employers use two or three months as a maximum light duty duration. Once the duration is established, employers must decide when employees who require a more extended absence will work light duty. If a facility's light duty program facilitates return to work, employees should not perform light duty until their doctor projects their return to full duty within the facility's light duty duration.

Finally, a good policy will require employees to work on their normal shift and retain their normal days off. It is convenient to assign light duty personnel to first shift with weekends off. Light duty work is often clerical, so having the injured personnel working around administrative staff allows them to be easily trained and supervised. Unfortunately, it is generally convenient for the employee as well, which can lead to prolonged "recovery."

Implementation

Although making sound policy decisions about a facility's light duty program is important, it pales in comparison to good implementation. Above all else, selecting the right administrator will make or break a facility's light duty program. The administrator needs to possess a rare combination of compassion, steadfastness, nurturing and skepticism. He or she should be part Florence Nightingale, part pit bull. Employees on light duty should find the administrator to be friendly and fair, but should not be able to sway him or her to manipulate the system. When the injured employee limps to his or her desk and says in a pitiful voice: "Could I please do my light duty on first shift? It would really help with my childcare issues," the administrator needs to be able to say "no" without unreasonably frustrating the employee.

This light duty administrator will routinely be required to make decisions about assignments and evaluate factors such as the injured employee's restrictions, working hours, days off, skills and interests. The administrator must also consider the relative usefulness of various available tasks. Other less objective factors may also carry weight. An employee with a clear prognosis and little opportunity for malingering, such as those with a broken bone, can be assigned agreeable positions without concern. The administrator's judgment about the individual should also influence the assignment decision; an employee with a questionable work history and/or injury should be given an assignment that provides no reward for malingering.

At first, the supply of light duty employees may exceed demand. An administrator may need to persuade managers to consider these employees for various odd, incomplete tasks. If the program is administered successfully, light duty employees will eventually be in high demand. The administrator's time, once spent trying to find good light duty assignments, will be spent appraising various requests to determine the best fit and value. He or she may begin telling eager managers, "Unless you push somebody down some steps, I probably will not be able to help you."

Eventually, a properly designed and administered light duty program changes the operation. On average, injuries will heal and employees will return to full duty more quickly. Employees on light duty will become productive contributors. Co-workers will trust that injured employees are truly injured, and rumors of malingering will decline. Further, they will know a fair system exists to keep them working if they suffer an injury. Supervisors who formerly complained about malingering will now complain that they are on a waiting list to get a light duty employee assigned to their area. When these things happen, the light duty program has been transformed into an asset for injured workers, co-workers, supervisors and the organization.

Jim Kramer is human resources director for the Davidson County Sheriff 's Office in Nashville, Tenn.
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No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:CT FEATURE
Author:Kramer, Jim
Publication:Corrections Today
Date:Feb 1, 2006
Words:2312
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