Accommodating Disabilities under the Wisconsin Fair Employment Act

Municipal Law Alert, February 2008

The Wisconsin Supreme Court in a recent decision, Stoughton Trailers, Inc. v. Labor and Industry Review Commission, 2007 WI 105, held that an employee was terminated because of a disability within the meaning of the Wisconsin Fair Employment Act. The Court’s decision resulted in the employer being liable for reinstatement, ten years of back pay with interest and the employee’s attorney’s fees.

The case involved the application of a no-fault attendance policy when an employee was temporarily disabled. The company terminated an over-the-road truck driver because he exceeded the allowable amount of missed time under the company policy. The driver challenged his discharge, claiming his termination was because of his disability. The Supreme Court upheld the finding of the Labor and Industry Review Commission that the employer failed to reasonably accommodate the employee’s disability.

The employer had a no-fault attendance policy. The employer utilized this policy to terminate an employee after he met the requisite number of absences. The Supreme Court looked beyond the no-fault attendance policy in deciding that the employer failed to exercise what it called “clemency and forbearance.” “Clemency and forbearance” is a temporary accommodation. An employer must forbear by, as in this case, temporarily tolerating absences due to the disability. This temporary forbearance is to allow medical treatment that potentially could remove the difficulty in performing the job.

The decision means that employers cannot solely rely on a no-fault attendance policy in disciplining and/or terminating employees for attendance problems. An employer will have to make an additional inquiry prior to taking any action for an attendance problem. This means that an employer is obligated to temporarily tolerate absences under certain situations. The decision effectively undercuts the uniform application of no fault attendance policies.

The lesson of Stoughton Trailers is that employers must tolerate absences when the employee is undergoing medical intervention related to an employee’s disability that may resolve the problem. Therefore, medical treatment effectively tolls the implementation of a no fault attendance policy. How long an employer has to wait is not clear. Employers will have to wait for future decisions that better define medical interventions and what is a treatable disability.

This decision should compel all employers to revisit their attendance policies regarding how and when they implement disciplinary action for attendance matters. Employers will have to insure that they accommodate employees undergoing medical treatment and or potentially face claims for reinstatement, back pay and attorney’s fees.

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