2009AP564 DeBoer Transportation, Inc., v. Swenson

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Employment
Workers compensation; refusal to rehire

Section 102.35(3) does not require an employer to change its legitimate and long-standing safety policies in order to assist an employee in meeting personal obligations.

“Consistent with Ray Hutson, and of particular importance here, Wis. Stat. § 102.35(3) does not contain a requirement that employers change their legitimate and universally applied business policies to meet the personal obligations of their employees. We note that there are instances in Wisconsin employment statutes where employers are required to make certain modifications. Particularly, ‘accommodation’ comes into play under Wisconsin’s employment discrimination statutes. Specifically, pursuant to Wis. Stat. § 111.34(1)(b), ‘[e]mployment discrimination because of disability’ includes ‘[r]efusing to reasonably accommodate an employee’s or prospective employee’s disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business.’ See also Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651 (requiring the employer to accommodate a worker’s disability in a case brought under § 111.34(1)(b)). Section 111.34(1)(b) has no application in a refusal to rehire claim under § 102.35(3).”

Affirmed.

2009AP564 DeBoer Transportation, Inc., v. Swenson

Roggensack, J.

Attorneys: For Appellant: Lauterbach, Michael J., Wisconsin Rapids; For Respondent: Jokela, John R., Wausau; Harlow, R. Duane, Madison

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