Many employers offer light-duty programs which are primarily designed to lower the cost of workers' compensation claims. Such programs create controversial issues as to whether pregnant females or those with disabilities should have access to such programs, even though they are not related to on-the-job injuries.
In a major Supreme Court ruling on the issue in 2015, Allen v. UPS, the U.S. Supreme Court found problems in light-duty programs which offer accommodations to workers who were limited in their ability or inability to work for virtually every reason except pregnancy. In the current case, EEOC v. Wal-Mart Stores East, (C.A. 7, August 16, 2022), the court rejected the EEOC's claim that Wal-Mart's temporary light-duty program discriminated against pregnant workers by making light-duty assignments available only to those with on-the-job injuries.
The Wal-Mart case dealt with pregnancy discrimination under the Pregnancy Discrimination Act, which precludes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." The key to the ruling was that Wal-Mart could not have discriminated against pregnant workers because the light-duty assignments were limited to those with on-the-job injuries. However, if an employer takes that action, it may come into conflict with other current EEOC guidance. Such guidance provides that employers may be required to provide light-duty to workers without on-the-job injuries when no other effective accommodation is available, as part of the employer's obligations under the Americans With Disabilities (ADA), absent an undue hardship. The problem is that when an employer grants light-duty to disabled workers without occupational injuries, to meet its obligations under the ADA, claims could occur under the Pregnancy Discrimination Rules if light-duty is unavailable to pregnant workers as well. It was key to Wal-Mart's success in the current case that it strictly excluded workers that did not have on-the-job injuries. The court in Wal-Mart made clear that the result may have been different if the EEOC had shown that Wal-Mart provided light-duty to any employee not injured on the job.
Editor's Note: Some commentators have suggested a solution to this dilemma created by the limitation of light-duty programs under the pregnancy and disability discrimination rules. The solution would be to have an express program limiting light-duty to those with on-the-job injuries in order to lower workers' compensation costs. The policy should be a little more explanatory, but the idea is to avoid the pregnancy discrimination concept under the rationale of the Wal-Mart case, while trying to avoid the ADA liability because of the undue hardship concept. This resolution is interesting but is not entirely free from legal doubt, because of the ADA's requirement of a reasonable accommodation. Also, state or local laws may apply as well, and it must be remembered that complications of pregnancy can constitute disabilities under the ADA.
This article is part of our October 2022 Newsletter.
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