Third Quarter 2017

Illinois

By: John Murphy, Michael Holt & Laurel Hall

Question: Under Illinois law, can a temporary transitional employment (“TTE”) placement at a not-for-profit or similar employer be used to terminate TTD benefits when the injured employee has not reached MMI?

Short Answer: Absent a contrary provision in a collectively bargained agreement, general principles of employment law permit an employer to make a temporary, reasonable assignment of an employee under restrictions to a different employer that can accommodate restricted duty. Further, under the Illinois Worker’s Compensation Act, Section 8(a) expressly opens the door to payment of a temporary partial disability benefit when the employee is working a job provided “by the employer or in any other job that the employee is working.” This provision suggests statutory authority for temporary transitional duty assignments. However, the Illinois Worker’s Compensation Commission, in published decisions, has rejected TTE assignments as a basis for terminating TTD when the employee refuses the assignment. Hennessy & Roach believes these decisions are poorly reasoned and fail to account for the express language of the foregoing TPD provision of the Act and the well-established benefits of temporary transitional work.

Discussion: A temporary transitional employment (“TTE”) program often arises when an employee is offered alternate light duty paid for by his employer at a not-for-profit or charity. Typically, these programs will provide placement until the injured worker has been released to full duty or reached maximum medical improvement. These programs are designed to encourage injured workers to transition back to full duty.

From an employment law perspective, if a collectively bargained agreement exists, its terms could potentially preclude an employer from making a temporary transitional employment assignment of the employee as such an assignment could materially change the assigned job duties and other terms/conditions of employment. Absent such an agreement, Illinois considers employment to be “at will.”   The “at will” employer has the right to direct its employees to perform any reasonable, safe work assignment, including temporary transitional work within restrictions at a different employer.

Illinois case law generally requires an employer who does not accommodate light duty restrictions to pay TTD benefits until MMI is reached. This concept is enshrined in Illinois case law. A related principle, however, is that an employer can terminate TTD benefits when the employee refuses to work a light duty assignment. When making a light duty offer, employers are wise to provide reasonable notice of the light duty offer to the employee in advance of the start date. In addition, the light duty assignment must be consistent with the prescribed work restrictions. Employers contemplating a TTE situation should not derail the TTE offer at the outset because of unreasonable notice or the actual job duties being beyond medical restrictions.

In 2005, the Illinois Worker’s Compensation Act was amended to provide a formula for the payment of temporary partial disability benefits. Prior to this amendment, case law on the payment of TPD benefits was inconsistent. In adopting a TPD formula, the Illinois General Assembly clarified Illinois law and sanctioned temporary work assignments made prior to MMI and while the employee was under medical restrictions. Further, the provision contemplates jobs that pay less than the employee’s usual wages. Lastly, the actual words used in the TPD provision suggest that temporary transitional work may indeed occur outside the employer. Why else would the Illinois General Assembly use language referencing the “modified job provided to the employee by the employer or in any other job that the employee is working.”

At least two Commission decisions have addressed TTE and held that the Act does not expressly permit an employer to make a TTE assignment to another employer. As such, an employee is within his or her right to unilaterally reject such an assignment. See, Alvarez v. Foodliner, Inc., 15 IWCC 443, 13 WC 20686 (June 10, 2015); and Lee v. Fluid Management, 11 IWCC 48656. These decisions also raised important, unresolved questions with the TTE assignment, such as 1) which employer would be responsible for a new work injury; 2) continuation of fringe benefits available to the employee through his regular employer; and 3) mileage reimbursement for travel to the TTE assignment.

The Illinois Appellate Court has not addressed the validity of a TTE assignment by an employer in the context of temporary work restrictions prior to MMI being reached. Thus, this remains an unresolved question in Illinois notwithstanding a few Commission decisions to the contrary. Moreover, contrary to the Commission decisions, the TPD provision arguably opens the door to a TTE assignment outside of the actual employer. Lastly, the “loaned-borrowed” provision of the Act expressly contemplates work assignments outside the actual employer.

Sound public policy endorses the use of TTE assignments prior to MMI. Many published medical and vocational articles acknowledge the benefit of light duty work to an injured employee. Second, employers that cannot accommodate temporary work restrictions are placed on the same footing as larger employers that can accommodate light duty work. Lastly, a TTE assignment to a not-for-profit organization imparts a benefit to the general public.

Practice Tip: Employers contemplating a TTE assignment must confirm that the assignment is in fact consistent with medical restrictions. Also, the TTE assignment should be reasonable in terms of the actual shift worked; the geographic location of the assignment; and the nature of the work to be performed. Difficult questions such as payment of fringe benefits; liability for new accidents; and perhaps mileage reimbursement should also be addressed. If the issue results in litigation, the employer must be prepared to produce expert medical and vocational witnesses that establish the benefits of TTE work and that the TTE assignment at issue was medically and vocationally reasonable.