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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.
Copyright
© 2007, Davis Wright Tremaine LLP.
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