123.43 Risk of injury to employee or others; reasonable “probability” standard

Objective evidence and expert opinion showed a reasonable probability of substantial harm in the workplace to the Complainant, who had an uncontrolled seizure disorder, based on medical reports, medical history and work history. The consulting physician retained by the employer was in a better position to render an opinion pertinent to the dangers the Complainant faced on the job because of his visits to the workplace. Ewerdt v. Brunswick Corp. (LIRC, 04/29/20).

In resolving the question of whether a disabled individual's employment in a position would be hazardous to the health or safety of the Complainant or to others, the appropriate test is not whether the Complainant suffers from diabetes or whether she may experience hypoglycemic episodes on the job, but whether the continued employment of the Complainant in her present position poses a "reasonable probability of substantial harm." Where an employer decides that an employee cannot safely perform his or her job because of a disability and takes an adverse action as a result, the responsibility for being correct is with the employer. The commission has consistently held that the fact an employer made an employment decision in reliance on the opinion of a doctor does not protect it from a finding of discrimination. The statute does not contain a "good faith" exception where discrimination has occurred. Lehr v. The Salvation Army (LIRC, 04/16/13).

Where the Respondent has established that a Complainant’s disability interfered with his ability to adequately undertake his job-related responsibilities within the meaning of sec. 111.34(2)(a), Wis. Stats., it is unnecessary to determine whether the Complainant also posed a safety risk in the workplace pursuant to sec. 111.34(2)(b), Wis. Stats. Sampson v. S & S Distrib. (LIRC, 11/19/99).

If the evidence shows that the Complainant has a present ability to physically accomplish the tasks which make up the job duties, the Respondent must establish to a reasonable probability that, because of the Complainant's physical condition, employment in the position would be hazardous to the health or safety of the Complainant or others. In arriving at a decision as to whether the employee can perform the job safely, the employer should rely on adequate medical records and on relevant records, such as the employee’s work and medical histories. In this case, while the record clearly demonstrated that the Complainant was likely to experience epileptic seizures at work, the evidence did not warrant a conclusion that such seizures would present a risk of harm to the Complainant or others. Alt v. Meriter Hosp. (LIRC, 03/27/96).

It was not unlawful handicap discrimination for an employer to refuse to employ a Complainant with lower back problems where the requirement for the position of youth counselor included physically restraining emotionally disturbed children in order to prevent them from harming themselves. In view of the Complainant's physical condition, the Complainant’s attempts to restrain a resident would be hazardous to herself and potentially hazardous to the Respondent’s co-workers and residents. Meacham v. Sunburst Youth Homes (LIRC, 02/04/93).

The Complainant exhibited symptoms characteristic of a psychotic-manic episode at work. The Complainant’s position involved reprocessing and decontaminating surgical implements for a health care facility. The Complainant would pose a danger to himself and others in his work setting if he suffered another manic episode. Therefore, the Respondent’s actions fell under the exception to prohibited discrimination set forth in sec. 111.34(2)(a), Stats. Schilling v. UW-Madison (Wis. Pers. Comm’n, 11/06/91).

The employer was required to show to a reasonable probability that the Complainants, who were denied hire as traffic officers because they did not meet the employer's uncorrected vision standards, would be a hazard to themselves or others. Expert opinion testimony was not necessary to determine that the Complainants did not pose increased safety risks. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished opinion, 02/27/90).

The reasonable probability standard is applicable for the duties associated with a deaf person driving tuggers and scooters in a manufacturing facility, except for those duties involving transporting toxic waste, for which the reasonably related standard is applicable. Willett v. Delco Electronics (LIRC, 01/17/90).

Where the employment in question was work as a nursing assistant in a nursing home, and where the employee proved by a preponderance of the evidence that the Respondent had terminated her from employment because of a handicap, the burden which thereupon passed to the Respondent to prove by a preponderance of the evidence, that to a reasonable probability and not merely to a reasonable possibility, the Complainant was or would be physically unable to safely or efficiently perform the duties of her job. Warras v. Woodland Health Ctr. (LIRC, 03/14/86).

Where there was no evidence that it was probable that an employee would fall and injure his only kidney, the employer failed to meet its burden of establishing a “future hazard.” Dairy Equip. v. DILHR, 95 Wis. 2d 319, 240 N.W.2d 330 (1980).

The burden is on the employer to establish to a reasonable probability that a handicapped individual is physically or medically unable to efficiently perform the required duties. Dairy Equip. v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980).

A medical opinion that the employee’s working conditions “could” be hazardous is not an adequate defense under the “reasonable probability” standard, since it suggests mere possibility. Western Weighing v. DILHR (Mears) (Dane Co. Cir. Ct., 05/09/77).

Where a job applicant with curvature of the spine has the present ability to perform as a welder, the employer must show that it is reasonably probable that the applicant would not be able to perform that job without risk of future injury to himself or others. Bucyrus-Erie v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979); Chicago, Milwaukee, St. Paul & Pacific R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).