Employers Dealt Another Blow by Wisconsin Supreme Court

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August 1, 2007

The Wisconsin Supreme Court recently issued a decision that will have a dramatic impact upon an employer’s obligation to provide reasonable accommodations for disabled employees.
 
We are providing a detailed analysis of this decision because it will be of vital importance to employers. The facts must be given in detail if there is to be a full understanding of the Court’s ruling.
 
I. Facts.
 
In Stoughton Trailers, Inc. v. Labor Industry Review Commission (7/17/2007), a manufacturer of semi-trailers, Stoughton had a no-fault attendance policy. The policy included a point-based system under which employees were assigned “occurrences” for tardiness and absences subject to limited exceptions, including absences under the state and federal Family and Medical Leave Act (FMLA). An employee who was absent from work due to a medical condition was provided a FMLA form to complete and to be returned to the human resources department. The form included a medical certification form to be completed by the employee’s physician. If the employee did not return the certification form within 15 days, the employee was assessed one “occurrence,” regardless of the duration of the leave. If an employee accumulated six occurrences, the employee was fired.
 
An employee, Geen, suffered from migraine headaches. As of December 11, 1996, Geen had accumulated 4.5 “occurrences” under the no-fault attendance policy, none of which were due to disability. From December 12, 1996, through January 7, 1997, Geen was absent from work because of severe headaches. This leave of absence constituted Geen’s first disability related “occurrence” under the attendance policy, bringing his total occurrences to 5.5. Geen sought medical attention at least three times during this period and was diagnosed as suffering from migraine headaches and depression. Geen was provided medication.
 
Geen returned to work on January 8, 1997. On January 24, 1997, he called in before his shift and said that he could not work because he had a migraine. Geen called in sick again with migraines on the following Monday and Tuesday mornings, January 27 and 28. When he returned to work on January 29, he was given a copy of a standard letter noting that he had been absent from work and that he needed to submit a completed FMLA form (i.e., a medical certification form) within 15 days of the date of the letter if he was to avoid having the absences counted as an “occurrence.”
 
On January 30, 1997, Geen provided the Company with a note from his doctor stating that he was being evaluated for migraines and that he had a follow-up examination the next week. On the next day, January 31, Geen gave the Company a second note from his doctor indicating that he had been unable to work on January 27 and 28 due to migraines but was now cleared to work without restrictions. The note did not address Geen’s absence on January 24. After reviewing the note, the human resources representative, Droessler, advised Geen that he was being discharged because the doctor’s note did not excuse him for January 24, causing him to accrue another “occurrence” for that date, which brought his total number of “occurrences” to 6.5. (Note that Geen was given only two days from the date he received the standard letter (January 29) to the date of his termination (January 31) to submit the FMLA form and not 15 days, as provided under the Company’s no-fault termination policy.)
 
Geen indicated that his doctor needed more time to evaluate him, and that his doctor would be unavailable to provide additional medical documentation for at least a week. Droessler told Geen that he had three working days from January 31 to write a letter to the Company’s Attendance Review Board in order to try and reverse the assessment of the occurrence. Droessler told Geen that he could submit additional medical documentation to the Board.
 
Geen timely appealed his termination to the Board. He indicated in his appeal that he was currently being evaluated for headaches and that his doctor indicated that he would perform additional tests and change his medication if the headaches persisted. Geen did not submit any additional medical documentation with his appeal letter. On February 21, 1997, the Board rejected Geen’s appeal.
 
Geen filed a disability discrimination complaint with the State of Wisconsin, Department of Workforce Development, Equal Rights Division, alleging that the Company had terminated his employment because of his disability. A Hearing Examiner found that Geen had a disability as defined by Wisconsin law, that his employment was terminated in part because of his disability, and that the Company had failed to reasonably accommodate his disability. The Company appealed that determination. The Labor and Industry Review Commission ultimately ruled that the Company had terminated Geen because of his disability and failed to reasonably accommodate his disability. The Company appealed that determination first to the circuit court and then to the Wisconsin Court of Appeals, both of which affirmed the ruling of the Labor and Industry Review Commission. The matter then proceeded to the Wisconsin Supreme Court level.
 
II. The Ruling.
 

A. Violation of No-Fault Attendance Policy.
 
Part of the issue before the Wisconsin Supreme Court was whether an employer could terminate an employee because of disability within the meaning of Wisconsin’s Fair Employment Act if the termination was for violating a no-fault attendance policy when only some the employee’s absences were caused by the employee’s disability. This was an unanswered question in Wisconsin. The Supreme Court declined to address this issue because the Court found that the Company had violated its own no-fault attendance policy when it terminated Geen. The Company’s policy allowed its employees 15 days from the date of receipt of the form letter to submit a FMLA medical certification form to ensure that a medically related absence would not be counted as an “occurrence” under its no-fault policy. The Court noted that the Company only gave Geen two days from the date it provided Geen with the form letter on January 29 to submit the certification. The Court noted that under the Company’s policy, Geen should have been given until February 13 to submit the certification and, by not waiting the full 15 days, the Company terminated Geen when he had only accrued 5.5 “occurrences”. The Court stated:
 
Because we conclude that Stoughton violated its no-fault attendance policy in terminating Geen and therefore is not entitled to whatever protection the policy may provide, and that Geen had not accrued the requisite number of “occurrences” necessary for termination under that policy, we need not address whether a termination for exceeding the maximum number of absences allowed under a no-fault attendance policy is a termination because of disability when some of the absences were caused by a disability and others were not.
 
The Court continued on to find that the Company had terminated Geen because of his disability. The Court pointed to the fact that the Company knew Geen was receiving medical treatment for migraine headaches when it terminated him. It also noted that Geen had recently been absent from work because of migraines, and that Geen had been previously absent for several weeks from December 1996 to January 1997 with migraines. Finally, the Court noted that the Company had given Geen only three days to obtain a medical excuse for his final absence, after Geen had indicated that his doctor would not be able to provide an excuse until the following week.
 
C. Reasonable Accommodation.
 
The Court then turned to the issue of whether the Company had reasonably accommodated Geen’s disability. The Company never raised the issue that accommodation of Geen’s disability would have posed a hardship on it. Therefore, that was not an issue before the Court.
 
The Court found on two separate grounds that the Company had failed to reasonably accommodate Geen’s disability. First, the Court found that the Company treated Geen’s first disability-related “occurrence” (December 1996 to early January 1997) very differently than the second disability-related “occurrence.” The Court noted that the Company did not provide Geen with sufficient time to submit a completed FMLA form to avoid being assessed an occurrence on the first occasion. However, on the second occasion, the Court noted that the Company terminated Geen only two days after providing him with its standard letter informing him that he had 15 days to submit the FMLA form, and that Droessler informed him that he had only three days to submit adequate documentation to excuse his absence, even though Geen had informed her that he would be unable to get such documentation from his doctor for at least a week. Based upon these facts, the Court concluded that the Company had refused to reasonably accommodate Geen because it did not give him sufficient time to submit documentation to avoid being assessed another occurrence.
 
D. Clemency and Forbearance.
 
The Court also concluded that the Company failed to reasonably accommodate Geen because it did not extend him “clemency and forbearance” in the form of temporarily tolerating his absences to give his medical treatment, which was already underway, a chance to resolve the problem of his disability-related absences. The Court found that “reasonable accommodation” includes forbearing from enforcing company rules while an employee is undergoing treatment. The Court stated, however, that “clemency and forbearance” is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for a disabled employee. The Court explained that “clemency and forbearance” requires that an employer “forbear” by temporarily tolerating an employee’s disability-related absences under circumstances similar to those presented in Stoughton (i.e., where an employee is undergoing continuing treatment). The Court further explained that “clemency and forbearance” requires a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility.
 

The Court summarized its decision as follows:
 

In sum, we conclude a more reasonable basis for LIRC’s decision is that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days, as allowed under the policy, to submit documentation to avoid being assessed an “occurrence.” Because Stoughton did not follow its own no-fault attendance policy, it may not claim whatever protection that policy may provide in its termination of Geen. Thus, LIRC’s conclusion that Geen was terminated because of his disability was reasonable. We therefore do not address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not. We further conclude that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen. …

 
III. WHAT DOES THIS MEAN FOR WISCONSIN EMPLOYERS?
 
In Stoughton Trailers, the Wisconsin Supreme Court declined to address whether an employer can terminate an employee under a no-fault attendance policy if some of the absences falling under that policy are disability related. The Court was presented with a golden opportunity to do so. Therefore, Wisconsin employers are still left in the dark as to whether no-fault attendance policies can be applied in a strict fashion with regard to disability-related absences.
 
However, one thing that is clear from the Court’s ruling is that if an employer has adopted a no-fault attendance policy, the employer should not apply that policy in a harsher fashion to employees who have been repeatedly absent from work and who may have a disability within the meaning of the law. The policy must be consistently and accurately applied or an employer may lose any protection that it may offer.
 
The Wisconsin Supreme Court broadened the reasonable accommodation requirement for employers. An element previously known, but not extensively applied, has now become part of the reasonable accommodation formula. That element is “clemency and forbearance.” The Court gave some guidance in regard to what is “clemency and forbearance.” This part of the reasonable accommodation formula apparently means that an employer should overlook or relax attendance/absenteeism rules with regard to an employee with a disability when the employee is undergoing medical treatment which may result in the employee returning to work and adequately performing his or her duties. Still, there are many questions unanswered. How long and to what extent must an employer grant “clemency and forbearance? When is enough too much? Does the Court’s ruling mean that an employer must extend “clemency and forbearance” with respect to all company rules or just rules pertaining to attendance/absenteeism? For example, if an employee with a mental condition should blow up at work and be verbally abusive to his or her supervisor, should an employer exercise “clemency and forbearance” and overlook the employee’s action or impose discipline to a lesser degree than would be the normal? Should an employer place such an employee on a leave of absence so the employee can seek medical treatment when this occurs? Perhaps future case rulings will answer these questions.
 
Employers must exercise more caution than ever before when taking adverse action against an employee with a possible disability. Failing to do so can cost the employer in time, headache and a lot of money. Please note that in the Stoughton Trailer case, the employee filed his complaint of discrimination on February 24, 1997. That complaint was not fully resolved until the Court’s ruling on July 17, 2007. Imagine the administrative time, headache, and costs (e.g., attorneys’ fees and legal fees) incurred by Stoughton Trailers in that time frame. Also, the remedy granted Geen was reinstatement, award of back pay, and payment of his attorneys’ fees and costs.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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