State News : New Jersey

Most employers put limits on light duty and do not allow permanent light duty.  That was the case of the employer in the matter of Frazier-White v. David Gee, 2016 U.S. App. LEXIS 6318 (11th. Cir. 2016).  Plaintiff Frazier-White worked as a community service officer for the Hillsborough County Sheriff’s Office (HCSO).  She was responsible for security at a detention center.  She was injured in a work-related accident on July 29, 2010, when a heavy metal door closed on her right arm, pinning her against a door frame.  She was placed on light-duty status and temporarily assigned to a position as a records desk clerk. The HCSO policy limited light duty to 270 days in a two-year period.

During the period of time that plaintiff was on light duty from August 2010 to June 2011, she saw several doctors who found she was at maximal medical improvement and had no restrictions.  Plaintiff sought another evaluation in March 2011.  Her physician ordered an MRI of the neck, which showed degenerative abnormalities which the doctor thought were not caused by work but may have been aggravated by the work incident.  He too put Frazier-White at MMI with no restrictions but he did recommend a neurosurgical consult.

The sheriff’s department wrote to plaintiff several times as she approached the 270-day light duty limit.  In April 2011, plaintiff wrote to Gee saying she was still having problems with her neck and requested “an extension to continue to receive care.”  She did not specify the length of time she would need; nor did she suggest any accommodations that would allow her to return to full duty by April 24, 2011.

The HCSO Risk Management Director Richard Swann wrote to plaintiff on April 11, 2011 advising her that she had been on light duty for 256 days as of April 11, 2011.  He encouraged plaintiff to contact him about potential ADA accommodations that she may be requesting or to make applications for other civil service full-duty jobs.  Plaintiff did not respond,  leading HCSO to take disciplinary action.  A hearing was scheduled once plaintiff passed the 270-day light-duty limit.  By the time of the hearing, plaintiff had been on light duty for 299 days.  Swann asked plaintiff in the hearing whether she would return to full duty within a reasonable period of time.  Plaintiff replied that her most recent MRI showed serious spinal damage.  Her doctor was recommending a spinal fusion surgery.  She said she could not estimate when she could return to full duty.  She did not request any accommodations that would allow her to perform the essential functions of her job, and she did not apply for any other full-time jobs.  HCSO therefore terminated plaintiff’s employment as of June 20, 2011.

Following her termination, plaintiff sued under the ADA and the Florida Civil Rights Act alleging disability discrimination.  The federal court granted summary judgment to HCSO.  The Court of Appeals affirmed.  First the Court said, “To the extent Plaintiff intended to request a permanent light-duty position, it is undisputed that no such position existed.  SOP 213.00 provides that every HCSO employee is essential to its efficient operation, and that eligibility for light-duty status is thus limited to 270 days during a two-year period.  Defendant was not required by the ADA to create a permanent light-duty position especially for Plaintiff.”

Plaintiff produced records showing numerous vacancies in the HCSO during the time she was on light duty.  However, the Court pointed out that she never requested any of the positions.  Further, the Court observed that plaintiff’s testimony was that she could not have physically returned to any full-time work given her serious neck problems.  The Court concluded, “Plaintiff’s only response was to request an indefinite extension of her light-duty status, an unreasonable accommodation as a matter of law.”

This case is relevant for employers because most employers have policies that end light duty based either on a specific time limit or on reaching maximal medical improvement.  Such policies must be flexible enough to consider requests for reasonable accommodation under the ADA or state civil rights law even after the time limit has ended.  In this case HCSO wrote several times to the employee asking her if she was requesting accommodations or other positions that would allow her to return to work full duty.  The plaintiff in this case, as is quite common, simply wanted an indefinite leave extension.  Courts in just about every state believe that indefinite leave is simply an unreasonable request.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.