Temporary Medical Conditions are not Disabilities Under WFEA

January 22, 2016

On November 11, 2015, the Wisconsin Labor and Industry Review Commission confirmed that a physical or mental impairment must be permanent in order to be considered a disability under the Wisconsin Fair Employment Act (WFEA). Therefore, the threshold issue presented in a disability discrimination case under the WFEA is whether the employee is an individual with a disability. As to this issue, the employee bears the initial burden of proving a disability through competent medical evidence concerning the nature, extent, and permanency of the impairment. In the absence of such evidence, the case should be dismissed. 


In 2002, Diane Burge-Milner began working as a certified nursing assistant for the Department of Veterans Affairs (DVA) at a veterans’ home in Union Grove. On May 2, 2008, she saw Dr. Stephenson for treatment of a bunion on her left foot. On May 7, Dr. Stephenson gave her a note indicating that she would have to miss six weeks of work following a bunionectomy.

Burge-Milner underwent surgery and was unable to work for a significant period of time. On June 16, Stephenson postponed her return-to-work date until July 1. Stephenson subsequently postponed her return-to-work date to July 10, July 21, August 4, and September 8. On August 27, he stated that she could return to work on September 2 for eight hours per day with no restrictions. However, her return-to-work date was subsequently extended to September 22, September 29, October 8, October 20, and November 12.

On November 5, the DVA met with Burge-Milner to discuss her employment status and possible alternative positions. The DVA had a formal procedure for employees to apply for transfers to other positions. The procedure was explained in a collective bargaining agreement. According to the LIRC, Burge-Milner did not use the DVA’s transfer procedure to apply for another position.

The same day, Stephenson stated that Burge-Milner might need to take off an additional six to eight weeks. On December 15, he stated she could return to work in the kitchen or laundry area on February 2, 2009.

On December 18, the DVA sent Dr. Stephenson a letter asking whether Burge-Milner would be able to perform food-service duties without restriction, and if not, what accommodations could be made for her. On January 6, 2009 Dr. Stephenson again stated that Burge-Milner would be able to return to work in the kitchen or laundry area on February 2.  However, on January 19, Dr. Stephenson postponed her return-to-work date until February 15.

On February 3, the DVA sent Burge-Milner a letter stating that if she could not return to work on February 15, it would discuss terminating her employment. On February 23, the DVA sent a letter to Stephenson stating that it had not received a reply to its February 3 letter. The same day, the DVA sent Burge-Milner a letter noting that (1) she had been absent from work since May 10, 2008, (2) her return date had been repeatedly postponed, (3) it did not have a firm date for her return, and (4) all her leave entitlements had been exhausted. The VA stated, “We are led to believe termination of your employment for medical reasons from your current position as a PT nursing assistant may be necessary.” According to the LIRC, Burge-Milner did not make an attempt to return to work in February 2009.

The DVA scheduled a meeting for March 4 to discuss Burge-Milner’s employment status. According to the LIRC, she did not present any new medical information at the meeting. On March 12, the DVA sent her a letter stating she would be medically separated effective March 16. Burgs-Milner then filed a disability discrimination claim under the WFEA.

Disability requires medical evidence

The LIRC dismissed Burge-Milner’s claim because she failed to establish that her condition was permanent. The WFEA covers only permanent impairments. The employee has the initial burden of presenting competent medical evidence on the existence, nature, extent, and permanence of her impairment. It appeared that Burge-Milner’s condition was severe and disabling at times. However, the LIRC did not find any credible evidence that her condition was permanent. Burge-Milner v. Department of Veterans Affairs, ERD Case No. CR200901313 (LIRC Nov. 11, 2015).

Bottom line

Employers have a duty to provide reasonable accommodations to qualified individuals with disabilities who need accommodations to perform the duties of their positions. A temporary leave of absence can be a reasonable accommodation, especially if it is relatively short. Conversely, an indefinite leave of absence generally is not a reasonable accommodation because the accommodation of not working does not help an employee perform her duties. Accommodation cases frequently involve a convergence of federal and state laws, including the Americans with Disabilities Act (ADA), the WFEA, the federal Family and Medical Leave Act (FMLA), the Wisconsin Family and Medical Leave Act (WFMLA), and the Wisconsin Worker’s Compensation Act. Employers must proceed cautiously and are well-advised to obtain legal counsel to help navigate accommodation issues.

This article, slightly modified to note recent updates, was featured in the January 2016 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.