• New Washington Laws of Importance to Employers
  • June 1, 2007
  • Law Firm: Perkins Coie LLP - Seattle Office
  • The most recent session of the Washington Legislature ended on April 22, 2007. Three bills important to employers made the long journey through the legislature and past the governor's desk. They are summarized below:

    • A new definition of disability under the Washington Law Against Discrimination ("WLAD") was adopted.
    • "Honorably discharged veteran or military status" has become a new protected category under the WLAD.
    • An insurance program was approved to provide paid family and medical leave.

    The Definition of Disability

    The definition of disability under the WLAD continues to evolve. As you may know, last summer the Washington Supreme Court in McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006), adopted the federal definition of disability found in the Americans with Disabilities Act ("ADA"). The decision became final in March 2007 when the court denied a long-pending motion for reconsideration. In a direct response to the court's decision, the legislature passed a law expanding the definition of disability beyond that which existed prior to the McClarty decision. The new definition impacts employers' accommodation obligations and employees' discrimination claims.

    The new law, SSB 5340, broadly defines disability as a sensory, mental or physical "impairment" that is "medically cognizable or diagnosable, exists as a record or history, or is perceived to exist, whether or not it exists in fact." "Impairment" includes, among other things, any physiological disorder, cosmetic disfigurement, a wide variety of anatomical losses, and any mental or psychological disorder, ranging from mental illness to specific learning disabilities. The legislation recognizes a disability in a broad range of circumstances, including temporary impairments, regardless of the potential for mitigation, and even if the impairment only limits the employee's ability to do a specific job.

    For reasonable accommodation purposes, the impairment must be known and have a substantially limiting effect upon 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. Reasonable accommodation is also required if engaging in job functions without an accommodation would aggravate the impairment.

    The new definition returns employers to the point before McClarty, where the jurisdiction that has control determines who is covered by the law. The Washington State Human Rights Commission, which pushed for the new definition, will treat this threshold definitional issue very differently than the federal Equal Employment Opportunity Commission. For example, temporary conditions will trigger coverage under Washington law, even though such conditions are not covered by the federal ADA. Medical conditions that limit the individual in the performance of his or her current job, , without regard to the individual's ability to perform a broad class of jobs, which is the focus of the ADA, will require reasonable accommodation

    The new law has an unusual effective date. It purports to be retroactive to all causes of action occurring before July 6, 2006, the date of the McClarty decision, and will apply prospectively to all causes of actions occurring on or after July 22, 2007.

    Veteran or Military Status

    The new Veterans Discrimination Act, SB5123, adds a new additional protected category to Washington non-discrimination law: "honorably discharged veteran or military status." Military status includes active or reserve members in any branch of the armed forces.

    Paid Family and Medical Leave

    Most workers are currently entitled to unpaid family and medical leave under the federal Family and Medical Leave Act ("FMLA"), the Washington Family Leave Act, and the Washington Family Care Act. But the Washington Legislature adopted legislation to provide limited paid family and medical leave. The new Family Leave Insurance Act, E2SSB 5659, requires that a not-yet-designated agency establish and administer a family and medical leave insurance program. Beginning October 1, 2009, eligible employees will be entitled to paid family and medical leave benefits up to $250 per week for five weeks per year. In firms with more than 25 employees, the employee's job will be protected during leave. Leave under this new state program will run concurrently with FMLA leave. A task force will recommend how to administer and fund the program by the end of the year.

    Impacts on Employers

    It will never be simple for Washington employers to comply with the law. Last summer's effort by the Washington Supreme Court to make sense of the Washington statute defining persons with disabilities has been abruptly ended by the legislature and governor. Employers need to understand that a very broad, almost unlimited, range of individuals will be viewed as persons with disabilities by Washington employment laws.

    On the other hand, the impact of the new protected category, veteran or military status is unclear. While federal law already provides veterans with re-employment rights after service, the new law prohibits discrimination in every aspect of hiring and employment for veterans and those with "military status."

    As for the paid family and medical leave program, the tough issues—administration and funding—are still to be worked out. Stay tuned.