Sunday, August 14, 2011

Wisconsin Law Journal on Leave as an Accommodation Under Anti-Disability Discrimination Laws

Recently the Equal Employment Opportunity Commission (EEOC) held a panel to discuss leave as an accommodation under the Americans with Disabilities Act (ADA). Attorney Marcie B. Cornfield has an article on the Wisconsin Law Journal's website about the topic and has a great discussion on Wisconsin's stance on leave as an accommodation From the article:

For Wisconsin employers, this line of cases indicates that the EEOC is taking an approach more akin to Wisconsin’s notion of “clemency and forbearance.” The “clemency and forbearance” requirement was first applied in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). There, the employee had repeatedly fallen asleep on the job due to her sleep apnea, a disabling condition, and had been disciplined and finally discharged in accordance with the employer’s rule against loafing on the job. She sought treatment for her condition and kept her employer informed of the nature of the treatment she was getting (an inhaler) and the treatment her physician was going to try next (a CPAP machine). She was discharged before going on the CPAP machine, which solved her sleeping problem and which would have permitted her to stay awake while at work. 217 Wis. 2d at 4–8, 576 N.W.2d at 547–49.

The Court of Appeals concluded that LIRC’s decision that the employer should have exercised temporary forbearance in the enforcement of its rule against loafing on the job was reasonable and supported by substantial evidence. Id. at 20, 576 N.W.2d at 553. The court observed:

Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility. Whether either is a reasonable accommodation in a given case will depend on the facts and circumstances of that case.

Id. at 19–20, 576 N.W.2d at 553.

In short, Wisconsin employers have been advised for some time that they may need to temporarily suspend their attendance and leave policies for employees with known medical conditions. At the same time, the Wisconsin Supreme Court has stated that “‘clemency and forbearance’ is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for the disabled employee.” Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶ 67, 2007 WL 2034022 (2007).

Unfortunately for employers, neither the EEOC nor Wisconsin courts have provided guidance as to how much leave an employer must provide to an employee.

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