By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 6: Washington Disability Law
This article is the 6th 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.
This article is the 6th 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 Sixth 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.
Washington law grants employees broader coverage and is almost always the law selected in preference to the federal law when plaintiffs litigate their disability claims. Primarily this is due to a much broader definition of the term “disability.”
The Washington state disability discrimination law (WLAD), like the ADA, starts by making it unlawful to discriminate against individuals based on their “disability.” But, oddly, the statute itself does not specifically define “disability.” Rather it defines “disability” in almost the most general of terms to mean:
[T]he presence of a sensory, mental, or physical, impairment that: Is medically cognizable or diagnosable; or exists as a record or history; or is perceived to exist whether or not it exists in fact.” [1]
To supplement this broad concept of “disability” as simply a “diagnosable” medical “impairment,” the law is further clarified by the regulations of the Human Rights Commission. But these regulations still define disability in broad terms. The regulations refer to disability as involving simply a health condition with an “abnormality,”[2] which only slightly narrows the definition of “disability.” Unlike the ADA, the WLAD does not require that to be qualifying the disability must affect a “major life activity.” This difference is key and is why the state disability law offers much greater protection, in most cases, than the federal laws.
Even though this broad definition of disability might seem to create almost boundless claims of protection, courts have somewhat reigned in the scope of the statute by incorporating some of the federal law concepts. Specifically, and importantly, the courts have redefined “reasonable accommodation” to exclude accommodations which involve maintaining employees in a position for which they cannot perform the “essential functions” of the job.[3]
In the next article in this series we’ll explore the key differences in the duty of reasonable accommodation under state and federal law.
[1] RCW 49.60.040.
[2] See WAC 162-22-040.
[3] See, e.g., Dedman v. Personnel Appeals Board, 98 Wn. App. 471, 989 P.2d 1214 (1999).
