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Everyone knows that an employee who is out of work for a qualifying condition is entitled to up to 12 weeks of leave under the Family and Medical Leave Act (FMLA). Two recent decisions from district courts in the 7th Circuit have held that the time in which an employee spends performing light duty work may also be counted against the 12-week FMLA leave. Both cases address fact patterns familiar to employers and their counsel. ROBERTS v. OWENS-ILLINOIS �- PERMANENT LIGHT DUTY In Roberts v. Owens-Illinois, Inc., 2004 WESTLAW 1087355 (S.D. Ind. May 14, 2004), Dawn Roberts injured her back while pulling a heavy cart as part of her duties as a material handler at Owens-Illinois, the nation’s largest manufacturer of glass containers. The workers’ compensation doctor placed her on light duty work and prescribed physical therapy. Ultimately, Roberts became dissatisfied with this physician’s treatment and sought a second opinion. As such, 13 weeks after returning to her employment on light duty, Roberts received a second opinion that her restrictions were permanent. The company fired Roberts upon receipt of this permanent restricted-duty opinion. Roberts ultimately had surgery performed by a third doctor and was released to return to full duty employment a few months later. Roberts brought suit against Owens under the FMLA, claiming that the company both interfered with her FMLA rights and retaliated against her when she attempted to exercise her rights. Roberts’ retaliation claim was dismissed on summary judgment, as there was no evidence that Roberts had ever asked for FMLA leave, nor had Owens ever designated her “light duty” period as FMLA-qualifying. The court focused, therefore, on Roberts’ claim that Owens interfered with her FMLA rights by not notifying her that any of her “light duty” was subject to the FMLA. REGULATIONS CLOSELY REVIEWED The court began its analysis by reviewing the Department of Labor Regulations to the FMLA which provide, in part, that when an employee voluntarily accepts a “a ‘light duty’ assignment while recovering from a serious health condition … the employee’s right to restoration to the same or an equivalent position is available until twelve weeks have passed within the twelve-month period, including all FMLA leave taken and the period of ‘light duty.’” 29 C.F.R. � 825.22(d). The court found that this language “indicates that uncoerced period of ‘light duty’ counts as FMLA leave.” NO RAGSDALE ISSUE The court then addressed the Ragsdale v. Wolverine World Wide Inc., 122 S. Ct. 1155 (2002), issue raised by the fact that Owens had not told Roberts that her light duty period would count against her FMLA time. It was undisputed that “Roberts performed a light duty position for more than twelve weeks and that she received employment benefits during that time. It [was] also undisputed that had Owens notified Roberts that it was designating her light duty period as FMLA leave, [she] still would not have been able to return to her material handler position at the end of the twelve week light duty period.” Taking a practical approach to employee notification, the court found that Roberts received all of the FMLA benefits to which she was legally entitled and, therefore, could not establish that she was prejudice by the company’s failure to notify her about her FMLA rights. Although Roberts lost her lawsuit, which also included a “failure to accommodate” claim under the Americans with Disabilities Act, she was eventually returned to her position and Owens paid her medical expenses incurred as a result of the injury. ARTIS v. PALOS COMMUNITY HOSP. — 12 WEEKS OF PROTECTION More recently, the United States District Court for the Northern District of Illinois also found that an employee’s acceptance of voluntary light duty counted against her FMLA period. In Artis v. Palos Community Hosp., 2004 WESTLAW 2125414 (N.D. Ill. Sept. 22, 2004), Bernita Artis told a similar tale to that of Roberts. She was injured at work, absent for just a few days and then worked for over four months on light duty. Artis’ employer, Palos Community Hospital, never gave her information on FMLA leave during this period. However, Palos’ “Limited Duty” policy provides that an employee who qualifies under the FMLA “will be given job protection of twelve weeks from the last day worked in his/her regular position.” Artis, like Roberts, was terminated from her position when she was unable to return to her employment in a full duty capacity. The Artis court found that the FMLA is satisfied “so long as acceptance of light duty work is ‘voluntary and uncoerced’ and the employee’s regular job is held open for twelve weeks, regardless of whether she spends those twelve weeks on light duty, unpaid leave, or some combination.” Artis focused her argument against summary judgment on her assertion that she had been coerced into working light duty, rather than taking a leave of absence. The court was dismissive of this assertion, as it found that even “assuming that plaintiff would have preferred unpaid FMLA to fully-paid limited duty, the fact remains that she was accorded a full twelve weeks of job protection …” LIGHT DUTY MUST BE VOLUNTARY Both cases focus on an element of the FMLA that has received little attention. It is important to emphasize that the light duty work in both cases was voluntary. It is well-settled that an employer cannot force an employee to accept a light duty assignment and cannot deny FMLA leave simply because light duty work is available. Moreover, it is important to note that neither Artis nor Roberts requested a leave of absence. If they had, their employers would have been obligated to provide FMLA leave, as both clearly had qualifying “serious health conditions.” Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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