Employer Services Advisory Bulletin
New Washington State Employment Laws Require Adjustments
By Mark
W. Berry
[July 2007]
Employers in Washington State must now adjust to
several new employment-related requirements that become effective
in late July. The Washington Legislature has amended several existing
employment laws, generally in the direction of providing additional
protections for employees. This advisory bulletin highlights the
most significant changes, namely:
Expanded Definition of
“Disability” Under Discrimination Laws
In 2006, the Washington Supreme Court in McClarty
v. Totem Electric aligned the definition of “disability”
under the Washington Law Against Discrimination (WLAD) with the
federal definition under the Americans with Disabilities Act (ADA).
In 2007, the Legislature moved to overturn this decision by establishing
a new, broader definition of disability.
The new statute uses two distinct “disability”
definitions, one for the protection against discrimination and one
for the circumstances requiring reasonable accommodations:
Protection from Discrimination.
Under the new definition, “disability” means an impairment
that is medically cognizable or diagnosable, or exists as a record
or history or is perceived to exist. On its face, this definition
may seem similar to that which employers have used for years under
the ADA. However, significantly, disability under the federal statute
only included those impairments “that substantially limit
a major life activity.” This “substantially limits”
language had been consistently used by the courts and the EEOC to
exclude those with temporary or mitigated conditions from the protection
of the law.
The Washington Legislature, however, sought to expand
the ADA definition. Thus, a medical condition need not “substantially
limit” the employee in order to provide protection. To underscore
its intent, the Legislature explicitly stated that a disability
“could be temporary or permanent, common or uncommon, mitigated
or unmitigated.” Furthermore, the disability need not impact
that employee’s job performance. (“A disability exists
whether or not it limits the ability to work in a particular job
or in general or to engage in any other activity.”)
Practice Tip: Given the
new broad definition, Washington employers should avoid making
any employment decisions based upon any actual or perceived
medical (including psychological) condition irrespective of its
degree or effect. Decisions should be based solely on qualifications,
performance, conduct or business needs.
Reasonable Accommodation Obligation.
For the purpose of reasonable accommodations, the Legislature adopted
a narrower definition. In those situations the medically diagnosable
impairment must (1) be known by the employer or shown through the
interactive process; and (2) substantially limit the employee’s
ability to perform the job or the documentation of a medical provider
must show that engaging in the job without an accommodation would
aggravate the impairment to the extent the employee would be substantially
limited from performing the job. This definition more closely aligns
with the employers’ accommodation obligation under the ADA,
with one significant exception. Although the Legislature used the
same “substantially limit” language as used under the
ADA, it was careful to define it more narrowly as any limitation
on the employee’s ability to perform his/her duties except
those that have “only a trivial effect.”
Practice Tip: Employers
should be prepared to consider reasonable accommodations for any
medical or psychological condition that affects the employee’s
ability to perform his or her job in any respect. This includes
temporary conditions.
Protection for Veterans and
Military Status
The Legislature added protection for “veteran
or military status” to the list of protected classes under
the Washington Law Against Discrimination. Although existing law
had guaranteed leave and reinstatement rights to those called to
active in reserve duty, this revision extends protection to veterans
and members of the military with respect to all terms and conditions
of employment.
Limitations on Credit Checks
A revision to the Washington Fair Credit Reporting
and Consumer Privacy Law now limits the circumstances when an employer
can conduct credit checks on applicants and employees. The new law
limits credit-related inquiries to those where the credit information
is “substantially related to the individual’s current
or potential job.” (Previous law had no limit; employers could
require credit checks for every employee or applicant.) Employers
must also disclose in writing the reasons for obtaining the credit
report.
Practice Tip: Employers
should review all positions for which credit checks are required
to ensure the “substantially related” test can be
met. Credit checks can only be performed when they are “substantially”
related to the employee’s job duties. In addition, employers
should modify their credit check disclosure and consent forms
to explain the reasons for the credit check.
Paid Family Leave
The Legislature established a new family leave insurance
program to provide five weeks of pay (up to $250/week) during a
family leave for birth or adoption of a child. This benefit will
not go into effect until October 2009; the Legislature directed
a task force to review potential funding mechanisms and submit a
report by January 2008. Stay tuned for details.
As always, some important practical
details with respect to application of these new laws have been
left to regulations, court decisions or agency guidance. In the
meantime, employers are encouraged to contact Mark Berry or their
regular Davis Wright Tremaine employment lawyer with any questions.
Davis Wright Tremaine has employment and labor
lawyers in Alaska, Oregon, Washington state, California and
Washington, D.C. We represent many clients nationally. For a specific
referral for a DWT employment and labor attorney in your state,
please contact the above attorney. Thank you.
This
advisory
is a publication of the Employer Services Department of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory
is to inform our clients and friends of recent developments in employment
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
advertising. Prior results do not guarantee a similar outcome.
Copyright
© 2007, Davis Wright Tremaine LLP.
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