A common personnel policy involves allowing employees treating for workers’ compensation injuries to continue work in an altered duty position. Questions arise concerning whether the altered duty must be continued after the employee reaches maximum medical improvement and is given permanent physical restrictions. The answer from the United States District Court of Tennessee and United States Sixth Circuit Court of Appeals is the employer does not have to continue providing altered duty after the employee receives permanent restrictions.
In Banks v. Brown-Forman Corp., 2003 W.L. 23140070 (6th Cir. 2003) the court held the employer was not required under the ADA or Tennessee Handicap Discrimination Act to continue to provide altered duty after the employee received permanent medical restrictions resulting from the workers’ compensation injury. The employee took the position that since the altered duty status had been provided, the lifting functions of the job which he no longer could perform were not essential to the position. The court disagreed and said, “an employer does not concede that a function is non-essential by temporarily accommodating an employee.”
In the Banks case, the employee suffered a shoulder injury. During the time he was treating and recuperating, the employer provided altered duty which did not require the plaintiff to perform the normal lifting of his work which could involve moving barrels in a distillery warehouse weighing between 100-500 pounds. When he was released at maximum medical improvement his permanent lifting restrictions were no more lifting than 35 pounds. The employee tried to make the employer provide him a permanent position within those restrictions. The court did not require the employer to do this.
The employee also argued he could perform his prior job but he would have to have accommodation from the employer through the “shifting of some of his functions to others.” The Sixth Circuit ruled the employer was not required to shift difficult tasks to the plaintiff’s fellow employees. Finally, the plaintiff asked that he be given another job requiring only driving and no lifting. The employer also prevailed on this issue because the other position was to be filled under a uniformly enforced seniority policy. The Sixth Circuit recognized that under Supreme Court precedent, an employer is not required to violate a uniformly enforced seniority policy to make an accommodation under handicapped laws.
From the Banks case we learn that allowing altered duty status during recuperation from a workers’ compensation injury, does not need to result in a requirement to provide a permanent altered duty job as an accommodation under handicapped laws. Good personnel policy practices require the employer to make clear that the altered duty status is temporary and will not be continued after the plaintiff receives permanent medical restrictions. It is important to enforce uniformly such policies. Selective enforcement or allowing exceptions to the policies may result in a successful argument from one claiming under handicapped statutes that the enforcement of the policy has been waived and that its selective application is evidence of discrimination. When the policies are well written, published to the employees and uniformly enforced, they should have the result of avoiding the need to create permanent altered duty status jobs for workers claiming under handicapped statutes.