November 30, 2018 BY Kayla Chen
Answering the Opposition to Charitable Light Duty Work
With increasing regularity, our practice continues to encounter employers who utilize transitional charitable light-duty placement when they are unable to accommodate injured workers’ work restrictions. However, as a natural evolution there is also an increasing opposition to this practice. Perhaps naively, I find myself wondering; “What’s the big deal; it’s just charity work?” To me it would seem that the injured worker is getting paid, they are getting out of the house, and they are serving their own communities. Yet, the arguments against continue to arrive in my inbox. When asked, one opposing counsel disclosed to me that the real issue is that an injured worker who is working charitable light duty is at risk of being terminated by their volunteer job, and having their benefits suspended as a result. However, risk of termination during light-duty is arguably the same regardless of the assignment.
Transitional employment is not a new concept, and furthermore, an entire industry has emerged regarding non-profit light duty. The cost savings of returning an injured worker to suitable employment are no secret and, as this practice continues to grow, opposition will most certainly follow.
Thus far, the Georgia State Board of Workers’ Compensation and higher Georgia courts have not addressed the issue of suitable transitional light duty work provided by an employer in the form of volunteer/charity work. However, the Georgia State Board of Workers’ Compensation, in a published Award from the Trial Division suggests a charitable job, much like any light duty position, must fit within the injured workers’ restrictions imposed by their authorized treating physician. See. https://sbwc.georgia.gov/published-awards, 2012-032270. In this Award, a food pantry attendant job was found unsuitable where a job description was approved by his authorized treating physician, a proper WC-240a job offer was made, however the worker was consistently required to perform tasks outside of his given work restrictions. Id. Therefore, the job was not a suitable job for that employee. Id.
Unfortunately for employers and the vendors that facilitate charitable light duty work, there are no clear cut guidelines. However, I would like to take an opportunity to highlight and answer some of the more commonly asserted arguments against the practice of placing injured workers’ in charitable light-duty positions in an effort to encourage best practices by employers who utilize this tool for returning injured workers to suitable employment.
Rebuttal to Argument #1: Charitable light duty work assignments create uncertainty as to who the actual employer is during the assignment, and absolves the employer of responsibility for re-injury.
With no surprise, this argument turns on the contractual relationship between all parties, and control. Especially when using a third party vendor to facilitate charitable light-duty, employers should make conscious efforts to maintain the employer/employee relationship. Specifically, during transitional charitable light duty, employers should continue to dictate the time, manner and means of employment through their contractual agreement with the non-profit and any third party facilitator. An employer may continue to pay and regulate the salary of their employee just as if they were working a light duty position within their own operations. Furthermore, an employer should still require the attendance of the employee, and delineate the duties that may be performed within their work restrictions. By agreement and through exercise of control, the employer would remain responsible for any re-injuries that may occur during transitional charitable light-duty.
In summary, it is proper to oblige an injured worker to participate in charitable transitional light duty or else face suspension of indemnity benefits for the reason that the employer remains the official employer of the injured worker, and therefore, remains responsible for any re-injuries.
Rebuttal to Argument #2: Disclosing an injured worker’s private information to a non-profit is a violation of Georgia’s “liberty of privacy” laws, Health Insurance Portability and Accountability Act of 1996 (“HIPPA”), and constitutes disability discrimination under the Americans with Disabilities Act (“ADA”).
When you begin talking about privacy in an already “gray” area, the answer becomes down right nebulous. However, based upon what we know, it’s a no brainer to assume that the less being disclosed to outside parties the better. That being said, it is imperative to effectively communicate the work restrictions of the injured worker to the non-profit where they are serving. Therefore, disclosure of work restrictions to a manger or supervisor where the non-profit light duty will take place is necessary to effectively facilitate charitable light-duty work. Of course, in addition, any disclosure of information should also comply with the HIPPA regulations, and employer should not disclose the underlying medical condition of the employee to a third party or a non-profit. In accord, a non-profit should not engage in a conversation with any injured worker about his or her medical condition. The non-profit organization should be provided with only the necessary information regarding that employee’s specific work restrictions.
Regarding the ADA, 42 U.S.C. §§12101-12701 requires that an employee with a disability be provided reasonable accommodation in performance of job duties, as long as it does not impose undue hardship to the employer. Thus, in order to comply with the ADA’s requirement for reasonable accommodation, the employer needs to effectively communicate and assure that the injured worker’s duties at the non-profit comply with the work restrictions imposed by their physician.
Rebuttal to Argument #3: Requiring an injured worker to attempt non-profit light duty or else risk losing their income benefits is a violation of the 13th Amendment of the United States Constitution.
Simply stated, transitional charitable light duty does not constitute slavery or involuntary servitude. An injured worker who is placed in transitional charitable light duty is paid for his or her labor in compliance with labor and wage laws of the governing jurisdiction. The employee is faced with the choice of attempting a charitable light duty position or else risking loss of their income benefits, and this choice is no different than the one they would make if the position being offered were a part of the regular business of their employer.
Rebuttal to Argument #4: Transitional charitable light-duty is not in accord with the “Best Practices: Early Return-To-Work Program” endorsed by the Georgia State Board of Workers’ Compensation.
Georgia’s State Board of Workers’ Compensation classifies volunteering as a transitional employment assignment for injured employees. Although it is noted that charitable work is not a traditional employment practice, an employer should not be limited when searching for a transitional assignment to accommodate the restrictions of an injured worker. Therefore, contrary to the argument above, the State Board specifically accounts for this practice in its own publication.
In conclusion, there are strong arguments for the permissibility of transitional light-duty work, however it is important to carefully contract between all parties involved, take care to maintain the employer/employee relationship, and make every effort to maintain the privacy of the injured worker.
I would like to extend a special thank you to Marsha Ambroise, one of our 2018 Summer Associates, for her assistance in researching this issue.
For a more in depth discussion regarding charitable light duty: Frances Ford, Transitional Employment –It Doesn’t Take a Superhero, The Journal of Workers’ Compensation (2009).
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley