Legislative Update: New Washington State Law Redefines "Disability"

May 16, 2007

A new act broadly redefining "disability" under Washington state law will have the likely effect of requiring employers to treat nearly all medical conditions as a disability.

Last year, in McClarty v. Totem Electric, the Washington State Supreme Court narrowly interpreted the definition of "disability" under the Washington State Law Against Discrimination ("WLAD") by adopting the same construction used for the term under the federal Americans with Disabilities Act ("ADA").  This ruling significantly limited the scope of protection previously endorsed by other Washington courts and the Washington State Human Rights Commission.

Explicitly rejecting McClarty, the Washington State legislature stated in passing Substitute Senate Bill 5340, "[T]he Supreme Court…failed to recognize that the Law Against Discrimination affords to state residents protections that are wholly independent of those afforded by the federal [ADA]."  Therefore, it adopted two different definitions of "disability", one for general purposes and one for the purposes of qualifying for reasonable accommodation.

General Definition:

According to the new law, a "[d]isability means the presence of a sensory, mental, or physical impairment that:

1. is medically cognizable or diagnosable; or
2. exists as a record or history; or
3. is perceived to exist whether or not it exists in fact."

This includes medically diagnosable impairments, regardless of whether they are temporary or permanent, common or uncommon, mitigated or unmitigated, or whether the impairment limits the person's ability to work generally or work at a particular job.  Any physiological, mental or emotional disorder or condition is covered.  Also included are cosmetic disfigurements and anatomical losses that affect almost any bodily system.  In short, the new definition is expansive and encompasses far more medical conditions than before. 

Reasonable Accommodation Definition:

An employer must accommodate an employee's condition when the impairment is "known or shown through an interactive process to exist in fact," and

1. the impairment has a substantially limiting effect on one of the following:
   • the individual's ability to perform his or her job;
   • the individual's ability to apply or be considered for a job; or
   • the individual's access to equal benefits, privileges, or terms or conditions of employment;

   or

2. the employee puts the employer on notice of the impairment and medical documentation establishes a "reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect."

A limitation is not considered "substantially limiting" if it has only a trivial effect.  However, the legislature did not explain what would be considered "trivial".

Conclusion

This new legislation's broad coverage will likely encourage employees to seek workplace accommodations for minor medical conditions.  Employers need to be more diligent than ever in addressing employee medical conditions.  When engaging in the interactive process or making employment decisions about whether a Washington employee is entitled to protection under WLAD, an employer's analysis must be more thorough under the new Washington law than the under ADA.  Employers will benefit from early consultation with employment counsel should any issues arise.

Practical steps employers should take to minimize risk include reviewing applicable policies and procedures regarding disability accommodation and leaves of absence, reviewing hiring practices to ensure continued compliance and, most importantly, training managers and supervisors to recognize issues concerning employees with medical conditions. 

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