Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 4: Introduction to the Duty of Accommodation and the Maze of Disability Laws
This article is the 4th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The Fourth article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
The ADA followed the pattern set forth by the Rehabilitation Act, but it did not totally supplant it. There are some differences between the two statutes and there are circumstances where each offers greater protections to employees than the other statute. Employers must comply with the requirements of both. Most of these differences are technical and do not immediately impact your role as a union representative; you just want to be aware that there are various statutes and to recognize that a court interpretation under one law does not necessarily extend to the other laws.
For those of us involved in Washington labor and employment issues, this point is especially important to remember. The state law, as we will discuss below, takes a more expansive view of what constitutes a “disability.” Having a qualifying “disability” is what opens the door to the protection of these disabilities statutes. The Washington Law against Discrimination (WLAD) also often, depending on the issue, imposes a higher standard on employers as to the extent of accommodation owed.
The differences between the ADA and the Rehabilitation Act are relatively minor, at least relative to the difference between the federal laws and the state law. By and large, in enacting the ADA, Congress adopted the statutory structure that had been set forth under the Rehabilitation Act. As a result, when the ADA was adopted, federal courts looked at prior Rehabilitation Act cases to help guide their interpretation of the ADA.
