Wisconsin Employers Face New Hurdle When Accommodating Disabled Employees
By: MARY M. KRAKOW
December 2003 - Flash Focus
Wisconsin employers now must proceed even more cautiously than before when determining whether they can accommodate a disabled employee’s work restrictions. Earlier this year, the Wisconsin Supreme Court ruled that under the Wisconsin Fair Employment Act (“WFEA”) an employer’s duty to accommodate a disabled employee includes modifying the employee’s essential job functions. This decision, Crystal Lake Cheese Factory v. Labor and Industry Review Commission, is a significant departure from the language and interpretation of the federal Americans With Disabilities Act (“ADA”), which requires that an employee must be able to perform the essential functions of his or her position, with or without a reasonable accommodation.
In Crystal Lake, the employee, Susan Catlin, was injured in a non-work related automobile accident. As a result, Catlin was a quadriplegic, although she did regain partial use of her arms. Nearly a year after the accident, she informed her employer that she was ready to return to work. The employer hired a management consultant to review and determine what, if any, accommodations could be made to enable Catlin to return to her prior job, which included, among other things, the physical tasks of lifting, climbing, reaching, loading and unloading product. Significantly, one of Catlin’s former “primary” responsibilities was to perform the tasks of other department employees when they were absent or falling behind in production. As a result of her accident, however, Catlin was unable to perform those other functions since they all required physical manipulations, such as lifting, climbing, reaching, loading and unloading. The consultant therefore determined that Catlin would not be able to perform all of the job functions of her prior position even with accommodation.
Catlin then hired her own expert to determine whether there were any accommodations that would enable her to return to her prior position. Her consultant determined that while Caitlin was not able to perform the physical tasks of her prior position, she could still perform the clerical functions of her position with changes to her work station.
In ruling that Crystal Lake Cheese Factory had violated the WFEA when it terminated Catlin, the Court explained that it is not bound by the decisions under the ADA and that a reasonable accommodation is not limited to steps that would allow the employee to perform all of his/her job duties. Rather, a change in job duties may be a reasonable accommodation. The Court also criticized the employer for not consulting directly with Catlin regarding her abilities and the job tasks she believed she could still perform. In contrast, the three-judge dissent explained that in finding Catlin could perform her job duties, the majority wrongly considered only the quantity of tasks Catlin could still perform, not the relative time or importance of those tasks for her position.
It appears from this decision that Wisconsin employers will now be required, as a reasonable accommodation, to consider eliminating those job functions of a disabled employee (even if they are essential or basic functions) that the employee is no longer able to perform. Additionally, Wisconsin employers must consider transferring the employee to another position better suited to the employee’s current abilities and, prior to taking action, must consult directly with the employee to determine the employee’s abilities and whether he/she can meet the job’s requirements.
We recommend consulting with an employment attorney before an employer takes any action in connection with an employee who is no longer able to perform all of the functions of his or her job due to a medical reason.