Several New Worker's Compensation Provisions Favorable to Wisconsin Employers

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Wisconsin Governor Scott Walker signed into law several new employer-friendly 2016 amendments to the state’s Worker’s Compensation Act. In addition to cutting the statute of limitations for traumatic injury claims in half, from 12 years to 6, the amendments also deny benefits to employees under three new provisions added to the law.

1. Drug or Alcohol Policy Violations

First, the new provisions prevent employees from recovering any indemnity (temporary or permanent disability benefits) or death benefits when they have violated their employers’ drug and/or alcohol policies and there is direct causation between violation of the drug and/or alcohol policy and the workplace injury. Under prior law, indemnity and death benefits were only reduced by up to 15 percent to a maximum of $15,000, under these circumstances.  The new law bars all indemnity and death benefits under these circumstances.

2. Employee Misconduct

Second, the new provisions prohibit employees from collecting temporary disability benefits when they are released to work with restrictions and then suspended or discharged due to misconduct connected with the employee’s work. Examples of “misconduct” include a violation of an employer’s drug and alcohol policy, theft of company property, intentional or negligent conduct that causes substantial damage to company property, or conviction of a crime or other offense that makes it impossible for the employee to perform his or her job. 

3. “Substantial Fault”

Third, the new provisions deny temporary disability benefits even if misconduct is not involved when an employee is released to work with restrictions and is then suspended or discharged due to “substantial fault” connected with the employee’s work. According to the provision’s definition, “substantial fault” occurs when an employee violates an employer’s requirement and the employee’s action or inaction was within the employee’s reasonable control. Substantial fault does not result from minor infractions of rules unless the employee repeats the infraction after the employer warns the employee; inadvertent errors; or failure to perform work because of insufficient skill, ability, or equipment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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