Employers Must Temporarily Tolerate Disability- Related Absences While Employee Seeks Medical Evaluation

August 8, 2006

In a recent decision, the Wisconsin Court of Appeals held that “temporarily tolerating” an employee’s absences is required as a reasonable accommodation under the Wisconsin Fair Employment Act. Stoughton Trailers v. Labor and Industry Review Commission and Geen, (Wis. Ct. App. July 27, 2006). Unfortunately, the court’s decision is troubling news for Wisconsin employers already struggling with the issue of “temporary” versus “permanent” accommodations.
The Facts of the Case: Douglas Geen worked for Stoughton Trailers, a manufacturer of semi-trailers, for approximately eight (8) years until Stoughton fired him for exceeding the allowed number of absences under its self-described “no fault” attendance policy. Stoughton’s attendance policy is a point-based system under which employees are assigned “occurrences” for absences, subject to limited exceptions including absences for FMLA-related reasons. At the time he was fired, Geen had accrued 6.5 occurrences. The occurrence that raised his point tally from 5.5 to 6.5, putting him over the allowed limit, was related to a three-day period of time during which Geen was absent due to migraine headaches. Stoughton terminated Geen for failure to provide medical documentation to excuse him for the entire absence. At the time he was fired, Geen indicated that his doctor needed additional time to evaluate him before he could bring in more medical documentation. Geen filed a claim for disability discrimination against Stoughton, and the case ultimately found its way to the Labor and Industry Review Commission (“LIRC”). LIRC found that Stoughton had failed to reasonably accommodate Geen’s disability. Stoughton appealed to the Wisconsin Court of Appeals.
The Court s Decision: The court agreed that Stoughton failed to reasonably accommodate Geen. In finding that Stoughton should have extended Geen the reasonable accommodation of “clemency and forbearance” and temporarily tolerated the absences which were being caused by Geen’s migraines, the court stated:

“It is reasonable for LIRC to conclude that, where an employer knows the employee’s medical evaluation is pending, as in this case, an employer should exercise clemency and forbearance” in reasonably accommodating an employee’s disability by not immediately discharging that employee until the full extent of the disability, and the resulting accommodations the employer should provide, can be determined. This is consistent with… the purpose of the statute. Therefore, under the great weight deference standard of review, we affirm LIRC’s conclusion that Stoughton Trailers did not reasonably accommodate Geen’s disability.”

What Wisconsin Employers Need To Know: This decision requires employers to tolerate an employee’s absences until the full extent of an employee’s disability and treatment can be determined. Unfortunately, the court fails to give any guidance regarding how long employers must tolerate such absences. To be on the safe side, employers should ensure that an employee’s request for leave is carefully documented. Employers should refrain from granting open-ended requests or from granting requests for long periods of time. Remember, employers who are too accommodating can find themselves unwittingly agreeing to a permanent accommodation and losing any possible argument that the accommodation is a “hardship”.
If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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