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Disability Discrimination Victory

We are proud to announce a victory in a disability discrimination case, achieved by CWPB attorney Tamara Packard. This month, the Labor and Industry Review Commission ("LIRC") found as a matter of law that the Salvation Army engaged in disability discrimination when it forced its diabetic employee to remain on an unpaid leave of absence for more than 18 months after her physicians said it was safe for her to return to work.

The employee had experienced some hypoglycemic events at work after a pharmacy error with her insulin. After the error was discovered and her medications adjusted, she was cleared to return to work by her own physicians. Despite this clearance, the employer's expert recommended to keep her off work. As explained by LIRC, that expert's recommendation "centered around a belief that he lacked adequate information to make an assessment regarding the [employee's] ability to perform the job safely and on reservations about whether the [employee's] doctors had adequate information available to them when they indicated she could safely continue to work."

Under long-standing law, however, an employer can keep an employee off work in circumstances like these only if it proves that because of the employee's physical condition, employment in the position would be hazardous to the health or safety of the employee or others, i.e., that continued employment of the employee in her present position poses "a reasonable probability of substantial harm."

Here, LIRC determined that the employer failed to prove that its refusal to allow the employee to return to work was justified in this way. Rejecting an argument that the employer lacked reasonable assurance that the employee could do the job safely, but made good faith efforts to obtain such assurances, LIRC explained:

While the [employer] may have proceeded in good faith, the statutory defense only applies where the employer establishes, as a matter of fact, that the employee cannot safely perform the functions of the job. The statute does not contain any "good faith" exception where discrimination has occurred; if an employer decides that an employee cannot safely perform his or her job because of a disability, and takes an adverse action against the employee as a result, the responsibility for having been incorrect in this assessment lies with the employer.

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