123.44 Risk of injury to employee or others; lesser “possibility” standard

In the case of common carriers, the profession’s special duty of care may be considered in evaluating whether an employee can adequately undertake the job-related responsibilities of a particular job. However, this evaluation must be made on an individual case-by-case basis. The Respondent failed to make such a case-by-case assessment in this case. The Complainant, a truck driver, was diagnosed with Wilson’s Disease, which can manifest as neurological problems, liver disease, or other symptoms. After receiving two complaints that the Complainant was driving erratically, the Respondent requested that he be medically re-evaluated. A neuro-oncologist concluded that the Complainant had some neurological impairment and suggested further testing, including a road test. However, he indicated that he did not believe that the Complainant’s condition should prevent him from operating a motor vehicle. The Respondent then sent the Complainant’s medical records, including the physician’s report, to a second physician. The second physician did not make an individualized determination about the Complainant’s ability to drive, but recommended disqualification simply because of a U.S. Department of Transportation conference report that concluded that all individuals with Wilson’s Disease should be disqualified from driving a commercial motor vehicle. However, the federal regulations require a physical examination. Because the second physician did not do a physical examination, his report cannot be considered a valid basis for a determination of the Complainant’s fitness to drive. The physician stated that test results would be irrelevant to his determination whether to disqualify the Complainant. The physician’s evaluation was invalid as a matter of law. Szleszinski v. LIRC, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345; aff’d, Szleszinski v. LIRC, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111.

Youth counselors who are responsible for performing security work in a juvenile correctional institution have a “special duty” of care for the safety of the general public. Wille v. DOC (Wis. Pers. Comm’n, 01/13/99).

Those engaged in interstate trucking are held to stringent safety standards and the Respondent was obligated, as a result, to investigate any potential basis for the Complainant’s apparently erratic driving. The Complainant’s qualification to drive as an over-the-road truck driver is governed by the Federal Motor Carrier Safety Regulations. These regulations provide for resolution of disputes over conflicting medical evaluations. A Respondent should not be held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the Complainant is qualified to drive, and the Respondent refuses to permit him to drive. Hermann v. ORT Trucking (LIRC, 12/14/94).

A Respondent reasonably suspended a Complainant until the State Department of Motor Vehicles could determine if her diabetes condition should disqualify her from driving a school bus. Since it is the Department of Motor Vehicles, through its licensing requirement, rather than the employer who determines whether an individual is qualified to operate a school bus safely, an employer fulfills its duty of individual evaluation by suspending the individual driver until the State can make its determination. In essence, the Complainant's diabetes condition was reasonably related to her ability to adequately undertake the job-related responsibilities of a school bus driver during the period of her suspension. Haynes v. Nat’l Sch. Bus Serv. (LIRC, 01/31/92).

The stringent “reasonable probability” standard is eased where the employer’s line of business is such that a number of persons could potentially be harmed by the handicapped employee. Where the employment involves a “special duty of care for the safety of the general public,” the employer need only show that the otherwise discriminatory practice bears a “rational relationship” to its safety obligations to the public and the employee’s co-workers. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

The burden was on the Respondent to prove that there was a reasonable possibility that the Complainant, who suffered from asthma, proposed a hazard to himself, to co-employees or to the public if he worked as a full-time firefighter EMT. Simply because the Complainant has worked as a paid-per-call firefighter without having had an asthma attack or accounting difficulties using a respirator is not proof that he would not have difficulties in the future. The job duties of a paid-per-call firefighter do not constitute a reliable test of the Complainant's ability to perform as a full-time firefighter. The medical evidence established that there was a reasonable possibility that the Complainant would have to withdraw from a fire scene to medicate himself because of his asthma and, consequently, his performance as a firefighter EMT would pose a reasonable possibility of danger to himself or others. Leach v. Town of Pleasant Prairie Fire Dep’t (LIRC, 04/23/91).

The Complainant’s position, which involved reprocessing and decontaminating surgical instruments for a health care facility, constitutes employment that involves a special duty of care for the general public. Schilling v. UW-Madison (Wis. Pers. Comm’n, 11/06/91).

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).

The Respondent, a trucking company, refused to reinstate the Complainant after he was diagnosed as having epilepsy. The Respondent met its burden of proving that the Complainant's handicap was reasonably related to his ability to adequately undertake the job of interstate truck driving, by establishing the applicability of federal regulations prohibiting the epileptics from engaging in such driving. However, the Respondent failed to meet its burden of demonstrating that reasonably accommodating the Complainant by assigning him to driving work not subject to federal regulations, or to yard work not involving driving, would pose a hardship on its program. Federal regulations prohibiting epileptics from driving in interstate commerce were inapplicable to intrastate routes which the Respondent routinely operated. Radloff v. H.F. Dushek Co. (LIRC, 08/18/88).

Work as a prison guard involves a special duty of care for the safety of the general public, and therefore the lesser “rational relationship” standard applies to questions of the handicapped employee's ability to perform the work. Conley v. DHSS (Wis. Pers. Comm’n, 06/29/87).

The Respondent was an electric power company. The Respondent refused to hire the Complainant for the job of truck driver/ground man because he suffered from epilepsy. Because of the nature of the duties of the position of truck driver/ground man for the Respondent, the nature of the work involving a highly hazardous force (electricity), the team efforts required of the ground men, and the close proximity of the public, it was appropriate to use the common carrier standard when reviewing the Respondent’s decision not to hire the Complainant. The Respondent had to demonstrate that its refusal to hire the Complainant bore a rational relationship to its safety obligations to the public and its own employees. The evidence in the record clearly demonstrated that the employment of an individual with epilepsy in this position might jeopardize the safety of the individual, the other crew members, and the public. Therefore, the Respondent demonstrated a rational basis to believe that hiring the Complainant posed an unacceptable risk of hazard. Samens v. LIRC, 117 Wis. 2d 646, 345 N.W.2d 432 (1984).

Where the employer is a common carrier, it has a lesser burden of showing only a rational relationship, (i.e., reasonable possibility) between its employment restriction of handicapped individuals and the safety of the general public. A job applicant with one arm was not wrongfully denied work as a cab driver despite a past record of successful cab driving where the employer, a common carrier, showed, through reliance on federal standards, that there was a reasonable possibility of future accidents. Boynton Cab v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).