This week’s employment law topic will cover the rights of Wisconsin’s disabled workers. As we now know, Wisconsin’s Fair Employment Law provides civil rights protection to all employees, including those with disabilities. This law applies equally to private and public employers, regardless of the number of employees. It protects those who are considered to be qualified applicants, and whom can perform the essential functions of the job, with or without, a reasonable accommodation. It may be difficult to decide if a condition is a disability under the law without having a medical diagnosis. There are three ways in which a person may be defined as having a disability. First, the person must have a physical or mental impairment that makes achievement unusually difficult, or limits the capacity to work. Secondly, the person must have a record of such an impairment. This pertains to those who have had a disability but is now covered. Finally, the person is perceived as having such an impairment. An example of a perceived disability is someone whose physical exam revealed a prior back injury that may not currently affect job performance, but may in the future.
The question often arises, “does an employer have to hire me if I am disabled?” The answer depends. A disabled person may be turned down for employment if the disability is reasonably related to their ability to adequately and safely perform his or her job duties. If the person’s disability would create a hazard or safety concern for themselves, their co-workers, or the public, the employer does not have to hire, or may terminate, a person because of a disability. If a hazard does exist because of a person’s disability then the employer has an additional duty to determine if a reasonable accommodation can be made to reduce the hazard to an acceptable level. A reasonable accommodation is any modification or adjustment to a job, the work environment, or how things are done, that enables a qualified applicant or employee with a disability to participate in the application process, perform essential job functions, or enjoy the same employment rights and privileges of others. Unless the need for an accommodation is obvious, it is the responsibility of the person with the disability to make a request for an accommodation. The person with the disability is often the best source for identifying the most effective accommodation.
An employer must make a reasonable accommodation unless it results in a hardship to the business. What constitutes a hardship varies from case to case. Generally, hardship may be found if the accommodation is difficult or expensive to achieve in relation to the size and resources of the business.
During the hiring process, it is unlawful for the employer to ask about a person’s disability, health or worker’s compensation history, even if the interviewee implies or expresses a limitation. Under the ADA, any inquiry at the pre-employment stage requiring an applicant to disclose a disability is unlawful. Employers are advised to avoid such inquiries or medical examinations before making a bona fide job offer to avoid discrimination claims.
An interesting case arises in the discussion of alcohol use and drug addictions being considered disabilities. Generally, alcoholism and drug addictions are considered disabilities under state law and therefore may not be discriminated against. Under the ADA, a “current” user of illegal drugs is not protected, although one who is recovering or in a supervised drug rehabilitation program is covered under both state and federal laws. Employers may require employees who use alcohol, or have abused drugs in the past, to meet the same standards of performance and conduct set for other employees. They may also prohibit the use of illegal drugs and alcohol while on the job.
If you are an employer with questions of how to prevent or resolve discrimination claims based upon disability, or if you are an employee or the friend, or family member of an employee with a disability who you believe has been discriminated against please comment below, or contact us. Finally, stay tuned for next week’s blog on how to administer an employment law complaint through Wisconsin’s Fair Employment Law.