This week’s employment law topic will cover the rights of Wisconsin’s disabled workers. As we now know, Wisconsin’s Fair Employment Law provides civil rights protection to all employees, including those with disabilities. This law applies equally to private and public employers, regardless of the number of employees. It protects those who are considered to be qualified applicants, and whom can perform the essential functions of the job, with or without, a reasonable accommodation. It may be difficult to decide if a condition is a disability under the law without having a medical diagnosis. There are three ways in which a person may be defined as having a disability. First, the person must have a physical or mental impairment that makes achievement unusually difficult, or limits the capacity to work. Secondly, the person must have a record of such an impairment. This pertains to those who have had a disability but is now covered. Finally, the person is perceived as having such an impairment. An example of a perceived disability is someone whose physical exam revealed a prior back injury that may not currently affect job performance, but may in the future.

The question often arises, “does an employer have to hire me if I am disabled?” The answer depends. A disabled person may be turned down for employment if the disability is reasonably related to their ability to adequately and safely perform his or her job duties. If the person’s disability would create a hazard or safety concern for themselves, their co-workers, or the public, the employer does not have to hire, or may terminate, a person because of a disability. If a hazard does exist because of a person’s disability then the employer has an additional duty to determine if a reasonable accommodation can be made to reduce the hazard to an acceptable level. A reasonable accommodation is any modification or adjustment to a job, the work environment, or how things are done, that enables a qualified applicant or employee with a disability to participate in the application process, perform essential job functions, or enjoy the same employment rights and privileges of others. Unless the need for an accommodation is obvious, it is the responsibility of the person with the disability to make a request for an accommodation. The person with the disability is often the best source for identifying the most effective accommodation.

An employer must make a reasonable accommodation unless it results in a hardship to the business. What constitutes a hardship varies from case to case. Generally, hardship may be found if the accommodation is difficult or expensive to achieve in relation to the size and resources of the business.

During the hiring process, it is unlawful for the employer to ask about a person’s disability, health or worker’s compensation history, even if the interviewee implies or expresses a limitation. Under the ADA, any inquiry at the pre-employment stage requiring an applicant to disclose a disability is unlawful. Employers are advised to avoid such inquiries or medical examinations before making a bona fide job offer to avoid discrimination claims.

An interesting case arises in the discussion of alcohol use and drug addictions being considered disabilities. Generally, alcoholism and drug addictions are considered disabilities under state law and therefore may not be discriminated against. Under the ADA, a “current” user of illegal drugs is not protected, although one who is recovering or in a supervised drug rehabilitation program is covered under both state and federal laws. Employers may require employees who use alcohol, or have abused drugs in the past, to meet the same standards of performance and conduct set for other employees. They may also prohibit the use of illegal drugs and alcohol while on the job.

If you are an employer with questions of how to prevent or resolve discrimination claims based upon disability, or if you are an employee or the friend, or family member of an employee with a disability who you believe has been discriminated against please comment below, or contact us. Finally, stay tuned for next week’s blog on how to administer an employment law complaint through Wisconsin’s Fair Employment Law.

Be sure to read our article on Wisconsin’s Fair Employment Law in our July newsletter at: http://www.kh-law.net/newsletter/newsletter.htm.  Because I think it’s important for everyone to understand their rights under employment law,  I intend to describe specfic aspects of  employment law within weekly blogs.  I hope this information is helpful not only to the employees in protecting their rights but also to employers in implementing the law. 

This week let’s take a deeper look into pregnancy in the workplace, and the rights of both females and males. Pregnancy is a happy and exciting time for a family, sometimes though, pregnancy can be a time of worry and uncertainty. The worry of what the future may bring can create stress for you individually, or for the whole family. I the hopes of putting some of your uncertainty to rest, according to Wisconsin and Federal Laws, your job, or the ability for you to be hired, is safe.  It is considered discrimination when a pregnant employee is treated less favorably than an employer would otherwise treat an employee with a temporary disability. In fact, an employer cannot make employment decisions based on any pregnancy related condition.

In regards to the hiring process, an employer cannot refuse to hire a woman because she is pregnant. As long as the woman meets the qualifications required for the job, she may not be denied employment, and she is not required to tell the employer that she is pregnant. During the interview process it is most likely illegal for an employer to ask a woman if she is pregnant or planning on having children in the near future. An employer cannot ask a question that applies to only one group of applicants and not to another. If any of these questions are asked and the job is not given, it could be considered discriminatory.

When in the workforce, it is the employer’s and employee’s obligation to treat a pregnant employee in the same way as they would treat all temporarily disabled employees. This means you may have to modify tasks, provide alternative assignments, provide disability leave, or leave without pay. A rule of thumb is that an employer should provide the same benefits to employees “disabled” by pregnancy, as it provides to all other temporarily disabled persons. In fact, employers with 50 or more permanent employees must allow up to six weeks of family leave in a 12-month period, without pay, for the birth of the employee’s child if the leave begins within 16 weeks of the child’s birth.

Additionally, an employer may not discharge, refuse to hire, or discipline a woman because she has or is contemplating terminating a pregnancy, or because she is pregnant and not married. The same maternity insurance benefits must be provided to all pregnant employees, no matter their marital status. In short, an employer cannot discriminate in its employment practices against a woman because of any pregnancy-related conditions.

During pregnancy, an employer cannot force an employee to take maternity leave at any point, unless she is unable to perform her job duties. The time and length of the employee’s leave should be determined between the employee and her doctor. An employer must hold a pregnant employee’s job open upon her return from maternity leave on the same basis as the jobs being held for employees on sick or disability leave. This applies to both male and female employees who take a temporary leave due to pregnancy.

In regards to disability coverage and other insurance questions, employers are required to provide disability coverage for pregnant employees on the same basis they provide for any other temporary disability condition. With this, disability income protection and medical expense insurance will cover pregnancy related issues as well as healthcare expenses, as they would for any other temporary disability. If the employer does not have any disability coverage for their employees, they are not obligated to provide coverage for pregnancy. The employer only has to provide pregnant employees the same benefits as they do to all temporarily disabled employees.

It is important to remember that even though you are pregnant, your employer can still legally discipline or terminate your position. In order for this to happen, the employer must prove that the termination was due to neglect of job duties or due to failure to follow work rules. In the matter or either event, the employer must have proper documentation of the employee’s actions, or lack of.

If you have any questions regarding pregnancy in the workplace, please comment on our blog, or contact one of our experienced employment law attorney’s. Join us next week for information on disabilities in the workplace and your rights.

There can be many benefits to creating a Limited Liability Company, whether you own an apartment complex, have a consulting business, or are selling cupcakes. With a properly organized and managed LLC, you can protect your personal assets from the debts, obligations, and potential lawsuits of your business. In addition, a Limited Liability Company can provide for continuity in the event an owner dies, becomes incapacitated, or leaves the business.

In Wisconsin, the Department of Financial Institutions offers an online method to quickly file Articles of Organization for a Limited Liability Company. Many assume that, after answering a few questions online and paying a $130 filling fee, you are magically protected from liability!

However, filing Articles of Organization online barely scratches the surface of creating an effective Limited Liability Company. There are many additional legal requirements that must not be overlooked. For example, Wisconsin law provides that you must have an Operating Agreement in place which lays out the general guidelines regarding management of the LLC. Without this important document, your LLC provides you with no protection and the creditors of your business could easily “pierce the corporate veil” and obtain access to your personal assets.

The moral of this story is that, if something looks too good to be true, then it probably is. The cost of hiring an attorney to assist you with establishing your Limited Liability Company can be well worth the legal protections you will obtain in the long run. We often discover the dangers of do-it-yourself estate planning when it’s too late – after a death or incapacity. We often discover the dangers of do-it-yourself business planning when it’s too late – after your business has been sued.