Wisconsin Supreme Court Avoids Addressing Issues Affecting the Use of No-Fault Attendance Policies in Disability Discrimination Case

August, 2007

By: Laura A. Lindner

In a much awaited decision, the Wisconsin Supreme Court in Stoughton Trailers v. LIRC, 2007 WI 105 (July 17, 2007), avoided addressing vexing issues under the disability provisions of the Wisconsin Fair Employment Act ("WFEA") - issues that affect the ability of Wisconsin employers to manage employee absenteeism. In a 4-2 decision, the majority narrowly affirmed the decision of the Labor and Industry Review Commission ("LIRC"), and expressly declined to "address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not."

Relevant Facts & Procedural History

Stoughton Trailers had a "no fault" attendance policy providing that an employee who accumulated more than six chargeable "occurrences" (i.e., absences and tardiness) within a prescribed period was subject to termination. Certain absences, including medical leaves covered by the federal and Wisconsin Family and Medical Leave Acts, were not counted under the policy. In addition, consecutive days of absence caused by the same medical condition were counted as one occurrence.

The claimant, Douglas Scott Geen, had accumulated 4.5 occurrences, none of which were caused by a disability, and was thereafter absent twice due to migraine headaches. After the first migraine-related absence, which lasted for almost a month, Stoughton repeatedly informed Geen that he could request FMLA coverage for the absence and provided him with a certification form to submit to the company within 15 days. Geen never submitted any medical documentation and was assessed one occurrence, for a total of 5.5 occurrences.

A few weeks later, after taking a vacation day, Geen missed work on a Friday, Monday, and Tuesday, and claimed he could not work due to migraines. On the Tuesday he returned to work, Stoughton again provided Geen a FMLA certification form, and informed him that he could be charged with another occurrence if his absence did not qualify for FMLA coverage. The next day, Geen provided Stoughton with a note from his doctor stating that he was being evaluated from migraines. The note did not address whether Geen was fit for duty, or specify that his three days of absence were caused by migraines. The following day, Geen provided Stoughton with another doctor's note stating that Geen was released to return to work without restrictions, and that he was unable to work on the Monday and Tuesday; the note was silent regarding the Friday absence. Later that day, Stoughton terminated Geen's employment because the medical documentation he had submitted did not excuse his Friday absence, and he had therefore accrued 6.5 occurrences under the attendance policy. At the time of his discharge, Stoughton's human resources administrator informed Geen that he had three working days to appeal his discharge to the company's Attendance Review Board ("ARB"), and that he could submit medical documentation to excuse the Friday absence to the ARB for consideration.

Geen appealed to the ARB and stated that he needed additional time to submit more medical documentation as his doctor was evaluating his migraines. Geen thereafter saw his doctor, but he never submitted any additional medical documentation to the ARB (or anyone else at Stoughton). More than 15 days after Geen was first informed of the need to submit medical documentation for his three days of absence, the ARB denied his appeal.

Geen filed a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development alleging that Stoughton discriminated against him in violation of the WFEA by terminating his employment and failing to reasonably accommodate his disability. Stoughton conceded that Geen's medical condition constituted a disability under the WFEA, but contended that it did not terminate his employment because of disability because it applied a "no fault" attendance policy, and that it did not fail to reasonably accommodate Geen because it allowed him to provide medical documentation so that his absences would be FMLA-qualifying and thus non-chargeable.

The case had a long and complicated procedural history, in which LIRC first found in favor of Stoughton on Geen's claims, but after remand from the Wisconsin Court of Appeals, reversed itself, holding that Stoughton discharged Geen "because of his disability and failed to reasonably accommodate him.

The Majority

The majority, in a decision written by Justice Butler, held that Stoughton violated its own no-fault attendance policy in terminating Geen. The majority found that Stoughton's policy allowed employees 15 days from the date of their receipt of a notice to submit FMLA documentation to ensure that a medically-related absence would not be counted as a chargeable "occurrence" under its attendance policy, and that the company only gave Geen two days to do so before discharging him. The majority concluded that by not waiting the full 15 days, Stoughton violated its policy and "is not entitled to whatever protection its no-fault policy may provide."

The majority further concluded that by failing to give Geen 15 days to submit medical documentation and by failing to extend "clemency and forbearance" in the "form of temporarily tolerating his absences while the medical intervention that was already underway had a chance to resolve the problem of his disability-related absences," Stoughton also failed to reasonably accommodate Geen.

The Dissent

In a sharply worded dissent, Justice Prosser, joined by Justice Wilcox, criticized the majority for avoiding "vital" questions on which "Wisconsin employers expect and need guidance," and "abdicating] its role as the state's ultimate policy making court." The dissent noted that the "result" of the majority's decision "is to permit an employee to miss work, claim that a key absence was based on disability, and escape any consequence even though he has never produced a single piece of medical documentation supporting the reason for the critical absence."

The dissent criticized the majority for failing to acknowledge that Geen's discharge was reversible upon his submission of the proper FMLA form, and only became final when the ARB rejected Geen's appeal, which was more than 15 days after Stoughton advised him to submit medical documentation. The dissent found "disturbing" the majority's conclusion that because it found Stoughton violated its no-fault attendance policy, Stoughton intentionally discriminated against Geen when it discharged him, because "reasonable inferences favor a finding that Stoughton lacked discriminatory intent."

The dissent also rejected the majority's conclusion that Stoughton did not reasonably accommodate Geen as "contradictory." To apply the majority's ruling, the dissent reasoned, would require an employer "to suspend its attendance requirements even if an employee fails to submit medical documentation confirming that his absence was disability related." The dissent disagreed that Stoughton failed to give Geen 15 days to submit medical documentation because Geen "had opportunities to turn in the FMLA form while the ARB was considering his appeal," and even visited his doctor during the appeal period. The dissent concluded that "Stoughton gave Geen ample opportunity to have his occurrence reviewed, but Geen did not take advantage of it. Thus, Stoughton should not be penalized for its employee's failure to provide FMLA documentation." The dissent further concluded that it is not reasonable to require an employer to exercise clemency and forbearance "without the employee ever having to provide the employer with any medical documentation justifying his absence," as employers should not have to take employees "at their word regarding disability related absences."

Implications for No-Fault Attendance Policies

Although the majority affirmed LIRC's determination that Stoughton terminated Geen because of disability, it held that the determination "is more reasonably based on the unique circumstances surrounding the termination of Geen than on LIRC's analysis of the relationship between Stoughton's no-fault attendance policy and the 'because of element of a disability discrimination claim under the WFEA." This calls into question the applicability of LIRC's rationale in future cases, specifically LIRC's holding that discharging Geen for two occurrences caused by his disability was sufficient to conclude that Stoughton terminated Geen "because of disability. While the majority refused to address the application of no-fault attendance policies to disability-related absences, it did not endorse LIRC's rationale for finding "because of disability discrimination. The majority also rejected Stoughton's interpretation, stating that it was "not more reasonable" than the majority's narrow interpretation of the "unique facts of this case."

Furthermore, with respect to Geen's first migraine-related absence, the majority did not find that Stoughton violated the WFEA by charging him an occurrence, even though it was a disability-related occurrence. Indeed, the majority concluded that Stoughton "treated [the] first disability-related 'occurrence' very differently than the second disability-related 'occurrence.'" This suggests that counting a disability-related absence against an employee under a no-fault attendance policy does not run afoul of the disability provisions of the WFEA, as long as the employee has been given ample time to avoid the absence being counted against him or her.

Lessons from the Majority's Decision

If an employer has a no-fault attendance policy that allows an employee a certain period of time within which to submit medical documentation to avoid a chargeable absence (e.g., adopts the 15-day minimum period provided by the federal FMLA), the employer should consider waiting to take action based on the absence until the period of time has expired, regardless of whether the employee has submitted any medical documentation during that period. Alternatively, any action an employer takes should be expressly conditional, until the period of time to submit documentation has expired. If an employee has submitted some information indicating that he or she is being evaluated by a health care provider and his or her absences might be disability-related, an employer might have to wait even longer than the time period provided in its policy (or the federal FMLA) - i.e., exercise "clemency and forbearance" - before enforcing its attendance policy.

Because the majority refused to address the critical issues raised by Stoughton Trailers, accommodating employees with disabilities will continue to be a significant challenge for Wisconsin employers. Unlike the dissent, the majority was willing to overlook the employee's failure to comply with the employer's reasonable request for medical documentation - a relatively minimal burden. As a result, employers must use caution in taking action based on absences that might be disability-related, so that they are not found to have violated the disability provisions of the WFEA.

Laura Lindner represented Wisconsin Manufacturers 85 Commerce, Inc., the largest association of Wisconsin employers, which submitted an amicus curiae brief in support of Stoughton's appeal to the Wisconsin Supreme Court.

If you have any questions about the issues raised by this e-alert, please feel free to contact Laura A. Lindner at (414) 273-3910 or by e-mail at or llindner@lindner-marsack.com

Lindner & Marsack, S.C. represents management exclusively in labor, employment, and employee benefits law, including the administration of employee health and retirement programs. Established in 1908, Lindner & Marsack, S.C. is consistently rated among the top labor and employment law firms in the nation. We are located at 411 East Wisconsin Avenue, Suite 1800, Milwaukee, Wisconsin, 53202. Call us at (414) 273-3910 or visit our website, http://www.lindner-marsack.com/, to learn more about our firm and its talented and innovative legal professionals.

This update is intended for general informational purposes and is not a substitute for legal advice.