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Disabilities (ADA): Wisconsin

Disabilities (ADA) requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Julia S. Arnold, Sofija Anderson and Michelle Barrett Falconer, Littler

Summary

  • In addition to the federal equal opportunity laws, Wisconsin employers must comply with the Wisconsin Fair Employment Act. See Disability Discrimination in Wisconsin.
  • The Wisconsin Fair Employment Act is a comprehensive law that addresses discrimination in employment, as well as public accommodation, public services, housing, education, credit and business relationships. See The Wisconsin Fair Employment Act.
  • Individuals with disabilities are entitled to accessible workplace parking spaces. See Accessible Workplace Parking.
  • Any agreement between a Wisconsin employer and another person offering employment in return for taking a genetic test is prohibited. See Genetic Testing.
  • Wisconsin permits the use of medical marijuana under very limited circumstances. See Medical Marijuana.
  • Localities including Madison and Milwaukee have requirements pertaining to disability discrimination. See Local Requirements.

Disability Discrimination in Wisconsin

In addition to the federal equal opportunity laws (see Employee Management > EEO - Discrimination), a Wisconsin employer must comply with the state antidiscrimination law, the Wisconsin Fair Employment Act. Where both federal and state discrimination laws apply, there may be conflicts, and the law more generous to the employee should be followed.

Wisconsin employers may be subject to local laws prohibiting disability discrimination. See Local Requirements.

The Wisconsin Fair Employment Act (WFEA)

The Wisconsin Fair Employment Act, +Wis. Stat. § 111.31 et seq., prohibits an employer from discriminating against an employee or applicant on the basis of his or her disability.

Covered Employers

The WFEA applies to all employers with at least one employee. The WFEA defines employer broadly as "any...person engaging in any activity, enterprise, or business employing at least one individual." +Wis. Stat. § 111.32(6)(a).

Because the scope of the WFEA is broader than that of the ADA (i.e., the WFEA extends to any person that employs at least one person, in contrast to the ADA's coverage of employers with 15 or more employees. See Employee Management > Disabilities (ADA) > ADA Employer Applicability), smaller Wisconsin employers should be mindful that they may be subject to state law requirements.

In addition, an employer is responsible for its own acts in addition to those of its agents (i.e., supervisors), regardless of whether the employer authorized the acts or even knew of the acts. For more information on employer liability, see Employee Management > EEO - Discrimination: Wisconsin.

What Is a Disability?

As with other forms of discrimination under the WFEA, discrimination based on disability is generally prohibited in hiring, termination, promotion, compensation, and terms or conditions of employment. In addition, the WFEA prohibits an employer from contributing a lesser amount to an employee's fringe benefits, including life or disability insurance, because of the employee's disability.

Under the WFEA, an individual with a disability is one who:

  • Has a physical or mental impairment that makes achievement unusually difficult or limits the capacity to work;
  • Has record of such an impairment; or
  • Is perceived as having such an impairment.

Although the definitions under the ADA and the WFEA are similar, the definition of disability has been construed more broadly under the WFEA.

Unlike the ADA, associational discrimination is not covered under the WFEA.

Duty to Accommodate

The scope of an employer's duty to accommodate an employee's disability is likewise much broader under the WFEA than it is under the ADA. The WFEA imposes an affirmative duty on an employer to reasonably accommodate an employee's disability unless the employer can demonstrate that the accommodation would impose an undue hardship on its program, enterprise or business.

The terms reasonable accommodation and undue hardship are not defined anywhere in the WFEA, and Wisconsin courts have held that these determinations are made on a case-by-case basis.

For example, transferring an employee to another job may or may not be a reasonable accommodation depending on the facts of the case. See McMullen v. LIRC, +434 N.W.2d 830, 833 (Wis. Ct. App. 1988). When faced with a transfer request, courts have considered factors such as the relationship between the two positions, their nature and physical location, and the individual with a disability's ability to perform the duties of the second position.

An employer may also be required to temporarily refrain from enforcing disciplinary rules as a form of accommodation, depending on the circumstances of each case. See Target Stores v. LIRC, +576 N.W.2d 545, 553 (Wis. Ct. App. 1998) (ruling that the employer's temporary forbearance from enforcement of its anti-loafing rule would have been a reasonable accommodation of complainant's disability of sleep apnea); Stoughton Trailers, Inc. v. LIRC, +735 N.W.2d 477 (ruling that the employer should have temporarily tolerated plaintiff's absences, which were caused by his disability, under its no-fault attendance policy).

Contrary to federal law, which does not require an employer to remove essential functions of the job, a Wisconsin employer may also be required to restructure the job under the WFEA as a reasonable accommodation. The WFEA does not indicate whether an employee needs to perform some, most or all of the job-related responsibilities in order to qualify for protection.

In addition, the 7th Circuit Court of Appeals (which covers Wisconsin, Illinois and Indiana) has held that the ADA does require an employer to place an employee with a disability, who is minimally qualified for a position, into the position in lieu of a more qualified candidate. See EEOC v. United Airlines, Inc., +2012 U.S. App. LEXIS 18804 (7th Cir. 2012). Other courts have held that the ADA does not necessarily require an employer to place an employee with a disability in a job for which there is a better applicant, provided the employer has a policy and/or consistent practice of hiring the best applicant. As the issue of whether an individual with a disability, who is minimally qualified for a position, should receive "preferential" treatment in reassignment decisions is evolving, it is advisable to consult with employment counsel when considering reassignment as a potential reasonable accommodation.

The 7th Circuit has also determined that a multi-month leave of absence is not a reasonable accommodation under the ADA. In holding that an employee who had exhausted his 12 weeks of FMLA leave was not entitled to an additional two months of leave to recover from surgery under the ADA, the court reasoned that the ADA "is an antidiscrimination statute, not a medical-leave entitlement…the term 'reasonable accommodation' is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' under the ADA." The court rejected the EEOC's argument that the duration of the leave should not matter if the employee can do the job when he or she returns. If that were the case, the court wrote, the ADA would be "transformed into a medical-leave statute - in effect, an open-ended extension of the FMLA." However, a brief period of leave - "a couple of days or even a couple of weeks" - could be reasonable in some circumstances. See Severson v. Heartland Woodcraft, Inc., +2017 U.S. App. LEXIS 18197 (7th Cir. 2017); Byrne v. Avon Products, Inc., +328 F.3d 379 (7th Cir. 2003).

Job-Relatedness Defense

An exception to the general prohibition against discrimination based on disability applies when it can be shown that the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of the individual's employment. +Wis. Stat. § 111.34(2)(a). In evaluating whether an individual with a disability can adequately undertake the job, courts may consider the present and future safety of the individual, the individual's co-workers and, if applicable, the general public.

Required Postings

All Wisconsin employers are required to post Wisconsin's fair employment law poster in a conspicuous location (e.g., employee break room). +Wis. Adm. Code DWD § 218.23.

Accessible Workplace Parking

An owner or lessee of a place of employment with a parking area must reserve at least the following number of spaces for motor vehicles used by physically disabled individuals:

  • For a facility offering 26 to 49 total spaces, at least one space;
  • For a facility offering 50 to 1,000 total spaces, at least 2% of all spaces; and
  • For a facility offering more than 1,000 total spaces, the same requirement as facilities with 50-1,000 spaces, plus at least 1% of each 1,000 spaces over the first 1,000.

+Wis. Stat. § 346.503(1m)(a).

An employer must also provide access aisles for disabled parking spaces.

  • If the number of such mandatory spaces is at least four but fewer than 20, at least one of these reserved parking spaces must have an access aisle immediately adjacent to the parking space to provide entry to and exit from vehicles by persons with physical disabilities.
  • If the number of the required parking spaces is 20 or more, at least 10% of these reserved parking spaces must have an access aisle immediately adjacent to the parking space to provide entry to and exit from vehicles by persons with physical disabilities.

The required access aisle must be at least 96 inches wide and clearly marked. This requirement applies only to parking areas that are initially constructed, or reconstructed, resurfaced or seal coated, after August 1, 2014, and that have adequate clearance for lift van access. +2013 Bill Text WI A.B. 828.

Genetic Testing

The WFEA also prohibits an employer from:

  • Soliciting, requiring or administering a genetic test to any person as a condition of employment, or affecting the terms, conditions or privileges of employment; and
  • Affecting the terms, conditions or privileges of employment of any person who obtains a genetic test.

Any agreement between an employer and another person offering employment in return for taking a genetic test is prohibited. However, this section does not prohibit an employee from requesting a genetic test and providing written and informed consent to taking a genetic test for any of the following purposes:

  • Investigating a worker's compensation claim; or
  • Determining the employee's susceptibility or level of exposure to potentially toxic chemicals or potentially toxic substances in the workplace, if the employer does not terminate the employee, or take any other action that adversely affects any term, condition or privilege of the employee's employment, as a result of the genetic test.

Medical Marijuana

Wisconsin has a law permitting the use of a form of medical marijuana under very limited circumstances that do not impact an employer's ability to maintain a drug-free workplace. For a list of states that have more expansive medical marijuana laws, please see Marijuana Laws by State.

Service Animals

For public accommodation purposes, Wisconsin protects the right of any person with a disability to be accompanied by a service animal. +Wis. Stat. 106.52(3)(1)(a). Wisconsin defines a service animal as a guide or signal dog or other animal individually trained (or in training) to do work or perform tasks for a person with a disability. +Wis. Stat. 106.52(1)(fm).

Emotional Support Animals

Wisconsin laws do not address emotional support animals in the workplace or in places of public accommodation.

Service Animal Trainers

Service animal trainers receive similar protections as those provided to an individual with a disability in places of public accommodation. Service animals in training must wear a harness or a leash and special cape, and the trainer must provide certification or other credentials from a school for training service animals upon request. +Wis. Stat. § 106.52(3)(5)(2).

For a discussion of the federal ADA service animal requirements, please see Disabilities (ADA): Federal > Service Animals.

Local Requirements

Madison Disability Discrimination

The Madison Equal Opportunities Ordinance, Madison, Wis., General Ordinances § 39.03(2)(m), provides for equal opportunity in employment. Like the WFEA, the Madison ordinance prohibits employment discrimination based upon disability. However it is broader than the WFEA in defining disability, and it also prohibits discrimination based upon genetic identity. The ordinance defines disability as follows:

  • A physical or mental impairment that substantially limits one or more of a person's major life activities;
  • A record of having such an impairment; or
  • Being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in Section 102 of the Controlled Substances Act (+21 U.S.C. 802)).

The ordinance states that the definition of disability also includes the term handicap as used in local, state and federal statutory, administrative or judicial case law.

Milwaukee Disability Discrimination

The Milwaukee Housing and Employment Discrimination Ordinance, Milwaukee, Wis., Code of Ordinances ch. 109a, like the WFEA, prohibits employment discrimination based disability. The Milwaukee Ordinance covers all employers located in the city that employ one or more individuals. Discrimination complaints under the Milwaukee ordinance are filed with the Milwaukee Equal Rights Commission (MERC). MERC has the authority to investigate each complaint and conduct administrative hearings to determine whether the ordinance has been violated.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Management > Disabilities (ADA)

State of Wisconsin, Department of Workforce Development, Equal Rights Division

Wisconsin Department of Workforce Development, Persons with Disabilities on the Job

Milwaukee Equal Rights Commission (MERC)

City of Madison, Department of Civil Rights

City of Madison, Department of Civil Rights: Forms