Understanding the Differences Between the ADA and the WFEA, and Issues Raised By Pending and Decided

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Understanding the Differences Between the ADA and
the WFEA, and Issues Raised By Pending and
Decided WFEA Cases

• Lisa Rutherford, Senior University Legal Counsel
• Tina Gislason, Assistant to the ADA Coordinator
• Barbara Lanser, Disability Coordinator/Employment

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Definition of Disability

• ADA
• Physical or mental impairment that substantially
  limits one or more major life activities
• record of such impairment or
• regarded as having such impairment
• WFEA
• Has a physical or mental impairment which makes
  achievement unusually difficult or limits
  capacity to work
• has record of such impairment or
• is perceived as having such impairment

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Definition of Disability (contd)

• ADA
• One way actual or perceived impairment can be
  disabling
• substantial limitation in a major life activity
  (must show inability to perform a class of
  jobs)
• WFEA
• Two ways actual or perceived impairment can be
  disabling
• achievement unusually difficult (no particular
  job) or
• limits capacity to work (particular job)

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Corrective or Mitigating Measures

• ADA
• Effects of mitigating measures must be taken into
  account when judging whether a person is
  substantially limited in major life activity
  (Sutton v. United Air Lines)
• WFEA
• Ability to control symptoms with treatment should
  not be considered in determining existence of
  disability (Salzer v. Briggs Stratton)

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Reasonable Accommodation Essential Functions

• ADA
• Accommodation must enable employee to perform
  essential functions of job
• EEOC guidance employer may restructure job by
  reallocating or redistributing nonessential,
  marginal functions not required to reallocate
  essential functions
• WFEA
• McMullen (1998) cannot be said that a
  job-related responsibility, even an essential
  one, need never be restructured or removed by way
  of reasonable accommodation transfer to another
  position may be ok
• Crystal Lake change in job duties may be a
  reasonable accommodation in a given circumstance

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Reasonable Accommodation Temporary Accommodation

• ADA
• Modifying full-time work schedule permanently to
  part-time may be required where this would
  relieve employee of essential functions of job
  (case law differs)
• WFEA
• Hutchinson fact that employer has made temporary
  accommodation does not shield it from liability
  when its willingness to provide reasonable
  accommodation ceases

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CASES

• Crystal Lake Cheese Factory v. LIRC (2003)
• Hutchinson Technology, Inc. v. LIRC (2004)
• Jane Doe v. UW-Madison

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Crystal Lake Cheese Factory v. LIRC

• Facts
• Position (department head) required ability to
  fill in for the three other people in department
  as well as administrative work (2 co-workers were
  family members)
• Car accident left her quadriplegic and in
  wheelchair she asked to return to her position
• Employer hired expert who concluded that she
  could not perform all of her job duties and could
  not be reasonably accommodated she was denied
  reinstatement based on this assessment
• Employee hired her own expert that concluded that
  she could return with reasonable accommodations
  if her job duties were modified and certain
  physical changes made employer refused and
  terminated her

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Crystal Lake (contd)

• WI Supreme Court Decision
• Looked at whether she was able to undertake the
  job-related responsibilities with reasonable
  accommodations, and if so, whether accommodation
  constituted a hardship
• Ruled that reasonable accommodations are not
  limited to those accommodations that would permit
  the employee to perform all job responsibilities
• No consideration to whether or not duties were
  essential
• Change in job duties, even reassignment of key
  job duties, may be a reasonable accommodation in
  a given circumstancehere, reassignment
  reasonable because duties she could not perform
  could be divided among the three other employees,
  allowing her to focus on those duties she can
  perform

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Crystal Lake

• Things to think about
• Obligations different essential functions test
  not relevant under WFEA
• Assess what functions employee cant perform and
  then see whether they can perform them with a
  reasonable accommodation then look at modifying
  job then look at hardship as last resort
• Talk to employee about ability to perform job
  duties

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Crystal LakeDiscussion

• Watch for further cases
• Marginal v. Essential Functions

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Hutchinson Technology, Inc. v. LIRC

• Facts
• Employee had restriction to work 6 hrs of
  required 12hr shift
• Employer allowed her to work this shift for 2
  months until doctor authorized 8 hr shift kept
  her on 8 hr shift for 6 more months
• She worked only one of the four functions through
  which her position normally rotated
• Company terminated her when her short-term
  disability ran out and her 8 hr work restriction
  became permanent

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Hutchinson (contd)

• WI Supreme Court Decision
• Considered whether shortened shift was reasonable
  and whether it imposed hardship on employer
• Employer required to allow employee to work
  reduced shift as reasonable accommodation b/c
  disabled under WFEA
• Key was that because employer allowed her to work
  reduced schedule for 8 months without showing
  hardship, employer had to allow her to continue
  with that schedule on a permanent basis8 hr
  shift was not a new job

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Hutchinson (contd)

• WI Supreme Court Decision
• Employer did not make any concrete showing of
  financial and/or operational hardship caused by
  employees shortened hours
• Employees initial burden to show that a
  reasonable accommodation is available
• Job modification may be reasonable accommodation
  unless employer can make concrete showing of
  financial and/or operational hardship

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Hutchinson

• Things to think about
• Employers must think about whether an
  accommodation creates an undue hardship
• Give temporary accommodation if not hardship
• Must prove that its hardship concrete evidence,
  not speculation
• Document that accommodation is temporary

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Hutchinson--Discussion

• How is it working for you to have the practice of
  both informal and formal accommodations?
• What are the primary issues you encounter with
  temporary accommodations?
• What would you consider for undue hardship if you
  were the decision-maker in the Hutchinson case?

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Jane Doe

• Facts
• First 3-year appointment Professor expected to
  participate in Transfusion Service coverage for 6
  months per year, among other assignments, such as
  teaching and committee work
• After 7 months, informally asked for reduction to
  4 months this required hiring Dr. Jones to make
  up time professor was missing, and this doctor
  was paid extra in addition to regular salary
• 3-year re-appointment contained same terms as
  initial appointment letter. Professor
  given/requested the following informally
• 1st year Service coverage reduced by another 4
  weeks plus 2 additional weekends off Dr. Jones
  again paid for additional service

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Jane Doe (contd)

• Re-appointment (contd)
• 3rd year Reduced to 80 appointment, to only 17
  weeks of service per year. This became 13 weeks,
  with the remainder spent in teaching and research
  duties.
• 3rd year Requested appointment of MD
  co-director of Residency Program. No existing
  faculty member to fill role, so department unable
  to fill request because it would have required
  hiring new person.
• 3-year re-appointment at 80
• November, 1st year Granted 3 month FMLA leave
• January, 2nd year Given intermittent leave and
  taken off service calendar department hired
  part-time faculty member, Dr. Smith, to provide
  coverage at additional cost

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Jane Doe (contd)

• March, 2nd year Requested permanent
  reassignment of duties and submitted proposal
  with new job descriptions. Asked to
• Transfer transfusion service component to
  Childrens Hospital and Outreach Services
  (25-40)
• No longer serve as Pathology Residency Director
  and instead become Director of Medical Education
  and Lab Medicine Elective Course Director to
  combine the Administration and Education
  requirements of her position (30-40) and
• Increase her research component by 10.
• In addition, in April, 2nd year, she submitted
  formal Accommodation Request Form, specifically
  asking for reassignment of clinical service
  portion of her job to another area of clinical
  pathology where she would have flexible hours, no
  direct patient contact and no on-call
  responsibilities

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Jane Doe (contd)

• Departments Response
• It would need to hire another 100 Faculty member
  to cover the original 6 months of assigned
  transfusion service that was part of Does
  original appointment
• Does proposed Childrens Hospital/Outreach
  initiatives were already adequately performed by
  existing faculty, and not duties which required
  specific assignment to a faculty member
• Position of Director of Medical Education and
  Course Director did not meet any identified need
  in the department, and requested change in duties
  would require the reassignment or hire of a
  faculty member

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Jane Doe (contd)

• Department Response (continued)
• The Schools Dean concluded that the request
  represented abandonment of the essential
  functions of the position
• Does proposed duties could not be incorporated
  into her faculty work
• Believed that Department had already provided
  numerous accommodations, and believed that they
  would be temporary because they thought her
  medical condition would improve
• Denied her accommodation request

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Jane Doe--Discussion

• What are the strengths and weaknesses of her
  case?
• What are the potential pitfalls of the
  departments case?
• What should the employer have done in regards to
  the accommodation request? Interactive process?
• What will the court decide?
• What are some of the ways you currently engage in
  an interactive process?