So, Tell Me When You Want to Work and What You Want to Do

By Stephen L. Weld

Published in the Fall 2004 edition of Chippewa Valley Business Report

Recently, the Wisconsin Supreme Court, in a case arising out of Hutchinson Technology’s Eau Claire plant, interpreted the Wisconsin Fair Employment Act much more broadly than the federal courts have been interpreting the Americans With Disabilities Act (ADA). As a result, Wisconsin employers have a significantly greater burden in accommodating disabled employees than do their competitors located throughout the country.

Hutchinson schedules its production employees to work seven twelve-hour shifts over two weeks. An employee, because of a back condition, was unable to work more than eight hours. Further, Hutchinson employees in the photoetch department worked a four-function rotation. This employee, because of her back condition, was only able to work one of the four functions. When it became clear that the employee would never be able to work more than eight-hour shifts or performing more than one of the four functions, Hutchinson severed the employment relationship. The employee challenged that action and the case ultimately reached the Wisconsin Supreme Court.

Despite the employee’s inability to work the regular production schedule and her inability to perform three of the four functions in her rotation, the Supreme Court held that Hutchinson was required to revise the job to meet the employee’s physical limitations. In doing so, the Court rejected Hutchinson’s argument that, even with accommodations, the employee was not able to perform the duties of the position for which she was hired.
This case is consistent with the Wisconsin Supreme Court’s decision last year in Crystal Lake Cheese (Comstock, Wisconsin) in which the Court determined that the cheese factory had to modify a position to allow a quadriplegic (who had eventually regained partial use of her arms) to remain employed despite the fact that she, too, could not perform the essential functions of her position.

These cases create a significantly higher burden for Wisconsin employers than the Americans With Disabilities Act (ADA) establishes for employers in the rest of the country. Under the ADA, an employer is obligated to accommodate only if the accommodations will result in the employee being able to perform the essential functions of the position. Thus, under the ADA, neither Hutchinson nor Crystal Lake Cheese would have been required to make the accommodations because, even with the accommodations, neither employee could perform the essential duties of the job. The Wisconsin Court has interpreted the Wisconsin law to require accommodation even though the employee, with the accommodations, cannot perform the essential functions of the position. Frankly, it makes little sense to require employers to make accommodations if the accommodations do not result in the person being able to perform the duties of the position.

Wisconsin employers have two defenses in these cases. The first is that the accommodations are unreasonable. In Hutchinson, the Court rejected Hutchinson’s arguments that the accommodations sought were unreasonable because the more difficult functions would have to be performed by other employees, adversely affecting their morale. The Wisconsin agency which administers the WFEA determined that requiring the hiring of a second employee (a driver) to allow the disabled employee (a blind individual) to perform his duties was a reasonable accommodation. ( Waldera v. CESA #11).

The other defense available to Wisconsin employers is that the accommodation causes an undue hardship on the employer. The undue hardship analysis requires a balancing of the cost of the accommodations to the size and nature of the employer and the size and nature of the employer’s facility at which the employee works. In other words, what might be an undue hardship for Crystal Lake Cheese might not be for Hutchinson.

Clearly, individuals with a disability can be valuable employees. However, the Wisconsin Court has put Wisconsin employers at a significant disadvantage to their out-of-state competitors by requiring employers to make accommodations in situations in which the employee, despite the accommodations, is still unable to perform the essential duties of the position.

This article is intended for general informational purposes only, and should not be construed as legal advice. Always contact your legal counsel for advice or answers to your questions.