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With its June 30, 2004 decision in Hutchinson Technology, Inc. v. LIRC et al, the Wisconsin Supreme Court has redefined how employers will need to deal with employees who want to return to work with temporary or permanent physical and mental work restrictions.
The case involved a worker, Susan Roytek, who returned to work at Hutchinson Technology with a restriction that allowed her to work only six hours of her required twelve-hour shift. Employees at the Company worked a schedule of three 12-hour days one week and four 12-hour days the next for a total of eighty-four hours every two weeks. Hutchinson allowed Roytek to work a six-hour modified schedule for two months until her doctor authorized her to increase her daily shift to eight (8) hours. Hutchinson kept Roytek on the eight-hour shift for six additional months because her doctor repeatedly indicated that Roytek’s restriction needed to be continued until her "next monthly appointment." The Company finally terminated Roytek’s employment when her short-term disability pay ran out and her eight-hour work restriction became permanent.
The Wisconsin Supreme Court found that due to her eight-hour work restriction, Susan Roytek was disabled and entitled to accommodation under the Wisconsin Fair Employment Act (WFEA). The Court found that Hutchinson Technology was required to allow Roytek to work a reduced eight-hour shift as the “reasonable accommodation” of her disability under the WFEA. To accommodate the reduced hours, the Company was also required to allow her to modify her duties so that she worked only one of the four functions through which her position normally rotated. The key to the Court’s decision was that because Hutchinson Technology had allowed Roytek to work the reduced hours schedule for eight months without showing that any hardship had occurred, the Company had to allow her to continue with that schedule on a permanent basis. Hutchinson did not make any concrete showing of financial and/or operational hardship caused by Roytek’s shortened hours.
The Court defined respective burdens concerning reasonable accommodation, stating that it is an employee’s initial burden to show that a reasonable accommodation is available. The Court concluded that Roytek had proved a reasonable accommodation was available because she worked eight-hour shifts for eight months and never received complaints about her work. The Court also accepted her argument that her accommodation was reasonable because no employees complained to management that they were overburdened due to her schedule and no temporary workers were hired to compensate for Roytek’s hours off. The Court referred to Crystal Lake to define what is reasonable as what will effectively enable an employee to perform his or her job duties adequately. An employer must then either disprove reasonableness or show that the proposed accommodation will create hardship. In effect, the Court held that a job modification, which allows an employee to perform some of his or her job duties, may be a reasonable accommodation unless an Employer can make a concrete showing of financial and/or operational hardship.
A remaining question is just how much of the job an employee should be able to perform as part of an accommodation. The Crystal Lake Court found it was reasonable to allow the Plaintiff to do some of the job duties where the accommodation included coworkers who were willing to assume the remaining job duties. The Hutchinson Technology court, on the other hand, indicated that Roytek could do her job with five eight-hour shifts spread over five days, but there was no indication that those hours were actually available to her.
Combined with the 2003 Wisconsin Supreme Court case of Crystal Lake Cheese Factory v. LIRC, the Hutchinson Technology decision has far-reaching effects for Wisconsin employers. An employer now appears to be obligated to provide an employee, having physical or mental restrictions, with at least a temporary opportunity for a requested job modification if the request is not patently unreasonable or will not cause clear hardship. Additionally, all options for reasonable and seemingly unreasonable accommodation must be reviewed and employer responses to each must be documented. If an employer modifies a position on a temporary basis for an employee with restrictions, the temporary nature of the assignments need to be emphasized. Employers should track and document any decreases or bottlenecks in work quantity or quality, customer or coworker complaints, or any other impact on the department or operation to demonstrate that the requested accommodation is not “reasonable” and has created a hardship.
The decisions should not necessarily be read to require employers to provide light duty jobs for non-work-related medical conditions. If an employer has a policy of disallowing non-work-related light duty, these decisions do not require an employee be given light duty work separate and apart from the individual’s original job.
Hutchinson Technology may also impact the hiring process. If an applicant can show that an employer has previously temporarily accommodated individual restrictions of the type presented by the applicant, an employer may be required to provide an applicant the same accommodation if it is reasonable at the time.
Best practices will require employers to actively manage employee injuries and accommodations. As part of accommodation management, employers will need to repeat reasonableness and hardship determinations on a regular basis throughout the course of any accommodation provided. Employers should track all accommodation and hardship with consistent documentation and recordkeeping. Additionally, during any period of medical leave, an employer should document hardship incurred in the event the employee seeks a continuing accommodation after the medical leave ends.
With these decisions, whenever an employee is placed in a temporarily modified position, the short-term nature of this placement must be stressed. Additionally, it is inadvisable to let any temporary job modification run even more than a few weeks without hardship review. Without it, employers will be required to accommodate any permanent job restriction for which an employee shows an effective accommodation exists.
For more information about Wisconsin disability law or the ADA, call (414) 988-8400 or e-mail educational services.
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