By: Alan E. Seneczko, Esq.
Just how "protected" are employees who suffer work injuries from employment decisions based upon legitimate business considerations? In two recent decisions, Wisconsin courts have addressed the relationship between legitimate business concerns and the "reasonable cause" requirement of Section 102.35(3).
Wis. Stat. § 102.35(3) requires a Wisconsin employer to have "reasonable cause" to refuse to rehire an employee who suffers a work-related injury. In effect, it modifies the "at will" doctrine as it relates to employees with work injuries. If an employer terminates or refuses to rehire such an employee without reasonable cause, it will be liable for up to one year's wages.
Does this mean that an employer may apply a standard policy to an employee seeking to return from a work injury, when he is unable to meet the requirements of the policy for reasons unrelated to the injury? In DeBoer Transportation v. LIRC, 2009 AP 564 (Wis. Ct. App. 2010), the Wisconsin Court of Appeals said "yes." In DeBoer, the employer required all drivers who were off of work for sixty days or more to undergo certain "recertification" procedures, which included an overnight "check ride." The employee refused to participate in the "check ride" upon his return from an injury, claiming that the requirement interfered with his ability to care for his elderly father. The employer refused to rehire him, prompting the employee to file a claim for unreasonable refusal to rehire. The court dismissed the claim, finding that the reasonable cause standard does not contemplate requiring employers to deviate from facially reasonable and uniformly applied policies, or to explain why it would be burdensome to do so, when a returning employee requests the deviation in order to accommodate a non-work and non-injury-related personal need.
In Electro-Connect, Inc. v. LIRC, 2009 AP 1022 (Wis. Ct. App. 2009), unpublished, the court rejected an employee's claim that his employer unreasonably refused to rehire him upon his return from a work injury when it hired a new production manager while he was gone. The production manager did not replace the injured employee, but he absorbed some of his duties and then cross-trained other employees to perform the remainder of his functions, effectively eliminating the injured employee's position. The court found that there was no evidence to demonstrate that the decision to replace the employee was motivated by his work injury, particularly given that the new position had been under consideration before the employee suffered the injury, and the decision resulted in increased efficiency in the operation - legitimate business reasons for the employer's action.
Questions? Please contact WS Shareholder and Senior Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.
