New legislation expands definition of disability under Washington state law
June, 2007
The Washington Legislature recently enacted a statute which redefines the term "disability" under state law for employment discrimination and accommodation (SB 5340). The new definition is effective July 22, 2007, and greatly increases the number of conditions that may be considered a disability and that must be reasonably accommodated.
Prior Definition of Disability
Prior to the change, the Washington Supreme Court in McClarty v. Totem Electric, 157 Wn.2d 214 (2006) held that the definition of disability under state law should follow the definition under the federal ADA. Under the federal definition of disability, a person is disabled if (1) the person has a physical or mental impairment that substantially limits one or more of his major life activities; (2) there is a record of such an impairment; or (3) the person is regarded as having such an impairment.
New Definition of Disability
The Washington legislature has redefined disability so that there is no requirement that the impairment limit one or more major life activities. Instead, disability is now defined as a "sensory, mental or physical impairment" that (1) is medical cognizable or diagnosable; or (2) exists as a record or history; or (3) is perceived to exist whether or not it exists in fact.
The term impairment specifically includes:
1. Physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting particular body systems;
2. Mental, developmental, traumatic, or psychological disorder (including cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities).
Requirements for Reasonable Accommodation
The legislature went on to require specific items that the employee must present to qualify for a reasonable accommodation. In particular, the impairment must be known or shown through the interactive process to, in fact, exist, and
1. The impairment must 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; or
2. The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish 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.
Conclusion
Thus, under the new law, many more impairments may be considered a disability for which an employee can seek reasonable accommodation. The employer must be prepared to engage in the required interactive process with regard to these requests. Education of supervisors and human resources personnel is important, as is confirming that current policies, handbooks, and job descriptions are up to date. Please contact your Bullivant Houser Bailey attorney if you need additional detail or have any questions.