Supreme Court Decision in Young v. United Parcel Service Raises New Questions about Light Duty Work Policies
By: Michelle Sullivan, Esquire
Allotta, Farley Co, LPA
The availability of light duty is an important concern for employees at many law enforcement agencies. Officers face injuries and conditions resulting from on- and off-duty activities that can restrict their ability to work full-duty and rely on light-duty to avoid a loss of income or break in benefits. As more women enter the law enforcement profession, they are also competing for light-duty assignments when restricted from full-duty as the result of a pregnancy. In many cases, these employees have not worked long enough to accumulate sick leave that will cover their absences if denied light duty, and stand to take significant time without pay because of their pregnancy-related restrictions. In many cases, employees are denied light duty unless they have medical restrictions as the result of a workplace injury.
The Supreme Court recently issued a long-anticipated decision in Young v. United Parcel Service, 135 S.Ct. 1338 (2015) that poses more questions than answers as to how and when an employer must permit an employee to work light duty. The Young case arose under the Pregnancy Discrimination Act (“PDA”) as the result a UPS employee who was denied light duty during her pregnancy. In Young, the Supreme Court set forth a new standard to be applied to pregnancy discrimination cases, will likely push employers to reevaluate their light duty work programs for all employees.
The Plaintiff, Peggy Young, worked for UPS as a part-time driver. Her job required her to lift boxes weighing as much as 70 pounds without assistance. Young became pregnant and her doctor restricted her to lifting no more than 20 pounds during the first 20 weeks of her pregnancy and no more than 10 pounds for the remainder of her pregnancy. UPS had a formal light duty policy, allowing light duty work for employees with work restrictions as the result of on-the-job injuries and accommodation of employees suffering from a disability as defined by the Americans with Disabilities Act (“ADA”). Young requested a light duty assignment, but UPS denied her request because her condition did not fall within the parameters of the UPS light duty policy. As the result, UPS placed Young on unpaid leave for the duration of her pregnancy. Young filed suit against UPS alleging discrimination under the PDA.
While Young and UPS litigated her pregnancy discrimination case, the EEOC issued a controversial Pregnancy Discrimination Enforcement Guidance in the summer of 2014. For many years, the EEOC has remained silent on the issue of employer obligations to provide light duty for pregnant employees. In its Guidance, the EEOC explained that because Title VII and its Pregnancy Discrimination require employers to treat pregnant employees the same as any employee with medical restrictions unrelated to pregnancy, employers must accommodate the limitations of pregnant employees in the same manner it would accommodate other employees with “similar limitations.” The EEOC specifically rejected the position that the PDA does not require an employer to provide light duty to pregnant employees when it has a policy specifically limiting light duty to employees with work-related injuries.
In the Young decision, the Supreme Court crafted a new standard to be applied in pregnancy discrimination cases. In doing so, the Court declined to apply the EEOC Guidance issued in 2014 because the Guidance was issued after the Court accepted review of the case and was inconsistent with the position the EEOC adopted in past cases. However, the Court also rejected UPS’ argument that light duty policy was lawful because it treated all employees with non-work related conditions and injuries the same, stating that this position contradicted the clear intent behind the PDA that pregnant employees be treated the same as employees with “similar” medical restrictions.
Instead, the Court held that an employee alleging pregnancy discrimination can make a threshold case for discrimination by showing that the employer failed to accommodate her restrictions, but accommodated similar restrictions for other employees with non-pregnancy related conditions. The employer is then given an opportunity to demonstrate a legitimate non-discriminatory reason for treating pregnant employees differently from employees with other medical conditions. However, the Court cautioned that the reason “cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates.” The employee can then rebut the employer’s reason by showing how the articulated reason is not true, or that the employer’s program imposes a significant burden on pregnant employees or that the employer’s reasons are not sufficient to justify the burden placed on pregnant workers.
Light duty assignments can be few and far between, if permitted at all, particularly at small law enforcement agencies. Historically, many employers either restrict light duty assignments or give preference to employees who have medical restrictions as the result of work-related injuries and conditions. Such policies help to control the number of people who would compete for a limited number of light duty assignments and help the employer save money on workers’ compensation costs. However, the Court’s holding in Young will now call this type of justification into question. Additionally, the EEOC Guidance remains in effect and employers must take this Guidance into consideration when drafting and applying light duty policies. While some may view the Young decision as a victory for expectant mothers, the decision raises many questions as to measures employers must take to offer pregnant employees light duty work, particularly in light of the EEOC Guidance on this topic and obligations Employers face where the conditions associated with pregnancy qualify for accommodation under the ADA. As the result of these questions that remain, employers are likely to review and revise their light duty policies or eliminate such policies altogether as the result of the Young decision.
Union representatives must be vigilant of employer efforts to modify or eliminate light duty policies and be mindful of the effect those changes will have on bargaining unit members. If you have questions regarding application of or possible changes to a light duty policy, please do not hesitate to contact your OPBA attorney.
Women, who continue to make up a small percentage of the law enforcement workforce on a nationwide basis, often encounter challenges when they are seeking accommodations at work for pregnancy-related issues. Questions involving light duty accommodations typically arise when complications or the advanced stages of pregnancy create the need for the officer to be placed in a light duty assignment.
Such issues for pregnant women are covered by the Pregnancy Discrimination Act (“PDA”), an amendment to Title VII of the Civil Rights Act of 1964. As such, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which applies to employers with 15 or more employees, as well as state and local governments. Under the law, an employer is required to treat its pregnant employees the same as it treats other employees who suffer restrictions as the result of non-pregnancy related injuries or medical conditions.
Consider the following hypothetical: female officer, Jane, learns that she is expecting a baby. Her doctor advises her that she will not be permitted to work on road patrol at the beginning of her third trimester because of the increased risk of injury to Jane and her unborn child if she is involved in a physical altercation. Upon learning this information, Jane immediately seeks out her chief to discuss the possibility of a light duty assignment on station when she reaches her third trimester. The chief advises her that the department has no light duty to offer her, and she will have to begin using sick leave or Family Medical Leave when she is no longer able to work unrestricted duty on road patrol.
If the department consistently denies light duty to all officers, regardless of the cause of the need for restricted duties, a denial of light duty work to this pregnant officer is not a violation of the officer’s rights under the PDA.
However, assume the department previously allowed light duty assignments for other officers who were suffered injuries or other illnesses that prevented them from working full, unrestricted duty. In this situation, a denial of light duty to the pregnant officer could constitute a violation of the PDA because the department would be treating the pregnant officer different than other officers with non-pregnancy related disabilities.
On the other hand, many small departments, who have a limited capacity for light duty work, may provide light duty assignments only to officers injured in the line of duty, but not for other employees who have work restrictions at the result of non-work related injuries or illnesses. Does an employer violate the PDA if it denies light duty work to the pregnant officer in this situation? The Sixth Circuit Court of Appeals addressed this question in Reeves v. Swift Transportation Company, Inc., 446 F.3d 637 (6th Cir. 2006). In that case, the employee, a truck driver, was discharged when she was no longer able to perform heavy lifting and required light duty in the late stages of her pregnancy. The employer had a policy of only offering light duty to employees injured on the job.
The court held that the employee’s discharge was for legitimate, non-discriminatory reasons, recognizing that truck drivers must be able to lift heavy weight. The fact that the employer allowed light duty for employees with work-related injuries did not trigger application of the PDA. Citing other decisions on this issue, the court noted that the plaintiff was not making a claim of discrimination, but rather, a claim for preferential treatment. Id. at p. 642. “As long as pregnant employees are treated the same as other employees injured off duty, the PDA does not entitle pregnant employees with non-work related infirmities to be treated the same under [the employer’s] light-duty policy as employees with occupational injuries.” Id. (quoting Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 208 (5th Cir., 1998)).
Just as the PDA requires employers to treat pregnant employees the same as other disabled employees, employers cannot force pregnant employees from their assignments or prematurely force such employees into restricted duty assignments out of concern of injury to the officer or her unborn child. In other words, it is unlawful for an employer to remove a pregnant employee from her assignment in anticipation of limitations she may have or based on assumptions or preconceived notions of limitations her pregnancy may cause. See generally, UAW v. Johnson Controls, 499 U.S. 187 (1991).
In most cases, those who believe they have been the subject of discrimination under the PDA must look to federal law for recourse. However, some collective bargaining agreements address light duty and may afford the affected employee a remedy if that light duty has been wrongfully withheld. Anyone having questions as to whether these rights have been violated should contact their OPBA representative for the appropriate guidance.
SITUATION A: You report to the department for your scheduled shift. While walking across the parking lot into the department, you slip and fall on some ice in the parking lot and suffer a serious fracture to your ankle. When you file the workers’ compensation claim, you receive word that your employer is rejecting your claim because you were injured before your shift began. This is worrisome for you because you have a high deductable health insurance plan and will be facing significant out-of-pocket expenses for your medical care.
SITUATION B: You are a corrections officer, and you have just left your assigned area in the jail to get your lunch when you trip and fall in the employee break room, injuring your back. You report the injury to your employer, who indicates that you will have use your health insurance to pay for your medical treatment and any sick time you have to cover your time off recuperating because your injury is not covered by workers’ compensation. You are concerned about this because you are a relatively new employee who has not yet accumulated much sick leave.
Both of the scenarios set forth above are common occurrences with law enforcement officers. The answer to question of whether an employee has a compensable workers’ compensation claim in each scenario is dependent on specific facts, but each presents a strong likelihood that the employee does, in fact, have a compensable workers’ compensation claim.
The threshold question that must be answered anytime a person is injured and pursues a workers’ compensation claim is: did the injury occur “in the course of and arising out of his or her employment.” This seems like a straightforward question; however, circumstances surrounding some workplace injuries, such as the circumstances in Situations A and B, can make the question difficult to answer.
Generally speaking, “course of employment” refers to the employee’s act of performing the obligations of his or her employment contract. This is not necessarily limited to injuries that occur while using the employer’s equipment or during specified work hours. An employee needs only to be fulfilling his or her job duties or engaging in conduct that is incidental to the job duties when injured in order to have sustained an injury in the course of his or her employment.
As such, the boundary lines for the zone of employment are not necessarily confined to the employee’s actual work area, nor does the employee need to be injured while performing his or her assigned work for the employer in order to have a compensable workers’ compensation claim. In assessing whether an employee has suffered an injury within the zone of employment, it is necessary to look at whether the environment was capable of causing an injury, whether the area has a proximity to the employer’s premises to present hazards that are attributable to the employment, and whether other circumstances exist in relation to the premises. This zone of employment rule has been applied to injuries that occurred before, during, and after work hours.
The degree of control an employer exercises over an area in which an employee is injured is an important factor in determining whether an injury occurred in the zone of employment. Further, if an employee has a limited choice as to access to his or her place of employment, the pursuit of such course is implied as an obligation under the employee’s terms of employment. For example, in Meszaros v. Legal News Publishing Co., an employee was injured when he slipped and fell on ice in a driveway as he walked from a parking lot to his place of employment. Even though neither the parking lot in which he parked nor the driveway in which he fell were owned by his employer, Meszaros’ injuries were still compensable due to the fact that the employer assigned and paid for him to park in the parking lot, and provided only two means of access to its building, one of which was through the driveway where Meszaros fell.
Applying the law to Situation A, where the employee is injured in the parking lot, the injury would likely be compensable. The Industrial Commission consistently finds that employee injuries that occur in employer parking lots are, in fact, compensable under the workers’ compensation system. Although there is no Industrial Commission policy to that effect, such decisions are the result of case law previously generated in this area.
Not only must injuries occur within the “zone of employment,” in order to be compensable, they must also occur within the time and course of employment. This includes the employee’s performance of any duty that is directly or indirectly related to some aspect of the employer’s operations, which occurs within a reasonable time before or after the employee’s shift or designated work hours. Accordingly, compensable workers’ compensation claims have included injuries occurring (1) when a terminated employee picked up his last paycheck; (2) when showering in the employer’s locker room; and (3) while changing into work clothes; or even (4) while on break for lunch or a snack.
Turning to Situation B, above, additional facts would be helpful in determining the likelihood of success on a workers’ compensation claim. For example, many law enforcement officers remain subject to call-out while on any break. Further, many corrections officers and dispatchers do not have the ability to take breaks off the employer’s premises, and some are required to take their breaks in areas under the exclusive control of the employer that are not open to the public. The presence of these types of factors would further support a conclusion that the employee’s injury occurring while he or she is on a break, would likely be compensable under the workers’ compensation system.
Unfortunately, many employers have a propensity to tell their employees who are injured in these circumstances that such injuries are not covered by workers’ compensation and this, in turn, discourages many employees from ever pursuing a workers’ compensation claim. Ultimately, this forces these injured workers into needlessly incurring substantial out-of-pocket expense resulting from medical bills for the care that is required for these injuries, and sometimes depleting their sick leave benefits.
Questions pertaining to coverage of workers’ compensation claims can be complicated. If you have questions regarding this issue or any other workers’ compensation issue, please do not hesitate to contact your OPBA representative for further guidance.
 Frishkorn v. Flowers (1971), 26 Ohio App. 2d 165.
 Remer v. Conrad, 153 Ohio App. 2d 165.
 Meszaros v. Legal News Publishing Co., (2000), 138 Ohio App.3d 645, 648.
 See Griffin v. Hydra-Matic Div., General Motors Corp. (1988), 39 Ohio St.3d 79, syllabus. (“An injury sustained by an employee upon the premises of her employer arising in the course of her employment is compensable pursuant to R.C. 4123 irrespective of the presence or absence of a special hazard thereon which is distinctive in nature or quantitatively greater than hazards encountered by the public at large.”)
 Philip J. Fulton, Ohio Workers’ Compensation Law (4th Ed), p. 279.
 Id. (citing Parot v. Industrial Commission (1945), 145 Ohio St. 66).
 Id. (citing Delker v. Industrial Commission (1989), 47 Ohio App.3d 1.)
 Id. (citing Caldwell v. Industrial Commission (1945), 44 Ohio Law Abs. 39).
 Id. (citing Bauder v. Mayfield (1988), 44 Ohio App.3d 91).
By: Michelle Sullivan, Allotta Farley and Widman Co., LPA
When an officer or deputy signs up for off-duty details or projects, one concern that frequently comes to mind is: “who will cover my medical treatment and lost wages if I get hurt – my employer or the business who has hired me to work the off-duty detail?” Work-related injuries are as common when a person is working an off-duty detail as they are when an officer working his or her regular job duties.
However, initiating a workers’ compensation claim when injured on an off-duty detail can be a frustrating process with the employer and the party utilizing the off-duty services of the officer sometimes pointing fingers at each other and refusing to accept responsibility for the injured officer’s workers’ compensation claim. This, in turn, leads to disputes through the workers’ compensation administrative hearing process and sometimes, litigation in court.
This very situation was illustrated in a case recently decided by the Tenth District Court of Appeals in State ex rel. Oakwood v. Industrial Commission, 2010-Ohio-5861. In this case, an Oakwood police officer was injured while working an off-duty detail.
In particular, the officer was rear-ended by another vehicle while he was in an Oakwood patrol car directing traffic at a construction site controlled by Kokosing Construction Company. Oakwood and Kokosing disputed the question of whether they would be responsible for the resulting workers’ compensation claim and this dispute proceeded to a hearing before the Industrial Commission of Ohio.
Ultimately, the Industrial Commission determined Oakwood was the employer which would be charged with responsibility for the workers’ compensation claim. The Industrial Commission looked at the “totality of the circumstances,” noting the following factors as the basis for its decision:
- the Oakwood PD directed Kokosing to use its police officers for traffic control at the construction project;
- the Oakwood PD directed Kokosing to utilize specific officers for its traffic control;
- the police department arranged for usage of Oakwood police cruisers at the construction site, and the officers wore their Oakwood police uniforms;
- traffic control was not a function ordinarily performed by Kokosing; and
- but for his employment as an Oakwood police officer, the claimant would not have been engaged in traffic control duties at the time the accident occurred.
The Village of Oakwood challenged this decision in the Court of Appeals. The court concluded that based on the totality of the circumstances as identified by the Industrial Commission in its decision, that Oakwood was properly found responsible for the officer’s workers’ compensation claim.
This recent decision is significant because it better defines the circumstances under which an employer will be responsible for the work-related injuries suffered by its law enforcement employees who work off-duty projects.
Up until this point, there have been only a few, very fact-specific cases that have addressed this issue, leaving the answer to the question of who is responsible for a workers’ compensation claim brought for injuries suffered on an off-duty detail unclear.
Some employers have attempted to capitalize on this unsettled point of law by either refusing these workers’ compensation claims outright or by telling their employees in advance that they will not accept responsibility for injuries sustained on off-duty details.
Other employers have even been known to threaten an end to off-duty details if the employees file workers’ compensation claims if injured while working them. These coercive measures have deterred some officers from working off-duty details and have caused others to needlessly incur expenses for medical treatment (i.e., paying co-pays and deductibles through their health insurance).
Until the issuance of the Oakwood decision, the only other case law addressing the compensability of injuries sustained on off-duty projects addressed a specific fact pattern involving an off-duty officer who was injured while trying to stop the commission of a crime.
In Cooper v. City of Dayton, (1997), 120 Ohio App.3d 34, a police officer was working for a private security company at a grocery store during his off-duty hours. While working at this second job, he observed a shoplifting in progress and tried to apprehend the shoplifter by jumping on the hood of the suspect’s car as the suspect was trying to flee from the store.
The driver of the car braked suddenly, causing the officer to be thrown off the car and onto the pavement. The officer filed a workers’ compensation claim against the City of Dayton. The City initially denied the claim, arguing that the officer was off duty and his workers’ compensation claim should be covered by either the grocery store or the security company he was working for at the time.
The court ruled that the City of Dayton was responsible for workers’ compensation coverage of the officer’s medical treatment and lost wages resulting from his injuries. In reaching this conclusion, the court reasoned that R.C. 2935.041(E) allowed the officer to arrest without a warrant whenever he had probable cause to believe the suspect had shoplifted from the business and that R.C. 2935.03 allowed the officer to arrest and detain a person found violating the laws of the state.
As the result, the officer was acting in his role as a Dayton police officer at the time of his injury, rather than as a private security guard. 120 Ohio App.3d at 43. Thus, the court concluded his injury occurred in the line of duty and was compensable under the city’s workers’ compensation policy.
Questions pertaining to coverage of workers’ compensation claims can be complicated, particularly when off-duty details are concerned. If you have questions regarding this issue or any other workers’ compensation issue, please do not hesitate to contact your OPBA representative for further guidance.
Last Updated (Monday, 21 March 2011 18:12)