Employers and employees alike benefit when injured employees quickly return to work following a work-related injury. Often, this requires employers to modify current work assignments or to create alternate assignments that accommodate an employee’s medical restrictions while the employee heals. The alternative assignments—or “light-duty” work—can take many forms. For example, clerical duties, secretarial responsibilities, and other alternative positions can be implemented into the company’s return-to-work policy. Unfortunately, however, not all employers can accommodate injured employees. In such situations, an injured employee may sit idly at home while the employer pays his or her workers’ compensation benefits. A number of industries are prevented from enjoying the myriad benefits associated with Early-Return-to-Work (ERTW) programs. To help these industries realize those benefits, an innovative, new disability management tool has gained interest throughout the country—a Modified Duty Off-Site (MDOS) program. Through MDOS programs, an employer can direct injured employees to a local charity or nonprofit organization for light-duty work while the employees recover. Although a handful of businesses in Nebraska have implemented the program, Nebraska law is silent as to whether its Workers’ Compensation Act permits MDOS programs. Neither Nebraska’s revised statutes nor the Nebraska courts confirm the permissibility of MDOS programs. Moreover, the compensation court’s historically liberal protection of employees could result in the court finding MDOS programs are more harmful to the interests of employees than beneficial. Consequently, this Comment has a dual purpose. First, it advocates for legislative action. The Nebraska legislature must amend its workers’ compensation statutes so that employers can confidently implement MDOS programs as part of their broader return-to-work policies. Second, even if such legislative action is not taken, the Comment demonstrates how Nebraska law still permits MDOS programs. Part II discusses ERTW programs, the supporting law for such programs, and the status of the law regarding MDOS programs nationally. Part III analyzes the status of the law in Nebraska concerning MDOS programs and—due to the absence of any clear direction—advocates for legislative action. Part IV argues that Nebraska courts should nonetheless support MDOS programs even if legislative action is not taken because Nebraska law inferentially supports the practice.
Thinking Outside the Disability Management Box: The Case for Modified Duty Off-Site in Nebraska,
90 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol90/iss3/7