By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 6: The Duty to Accommodate a Disability under State and Federal 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.
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 6th 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.
There are some differences and similarities in how the federal laws and the state law approach the concept of “reasonable accommodation.” Both sets of laws agree that an accommodation is not reasonable if it imposes an undue hardship upon the employer. The primary difference between state and federal law concerns the accommodation of an individual who cannot fulfill the job functions.
Under the federal laws, if individuals cannot perform the essential functions — with or without reasonable accommodation — they are not entitled to the protection of the disability discrimination portions of the statutes. The state cases, though, have been explicit that even if individuals are unable to perform the essential functions of the job, they are still entitled to protection.
But this liberal protection does not confer on the employee the right to maintain their position. Rather, it obligates the employer to engage in a specific “interactive” process with the employee concerning their availability for alternative positions. In fact, it actually requires the employer to provide priority consideration to those individuals for those positions.
Federal cases have been less clear concerning the obligation of employers to accommodate such individuals. A number of cases have held that since the individuals cannot fulfill the essential functions of the job, they are entitled to no protection under the statute. But other more recent cases are tending toward the position that there is still an obligation to make a “reasonable accommodation,” even with individuals unable to fulfill the job requirements, and employers have been held to the obligation to undertake work reassignments to accommodate an individual.
These later decisions explain that since the statute specifically mentions reassignments and job restructuring as a means of making an accommodation, whenever it is possible to assign an employee into a different assignment, that person meets the definition of a “qualified individual” and should, therefore, be accommodated into that different assignment. This more expansive application of the ADA term “qualified individual” would, in these circumstances, grant the individual some protections similar to what is otherwise available under the more liberal WLAD provisions. Regardless, for a variety of reasons mentioned, plaintiffs’ employment lawyers virtually always proceed primarily under the WLAD with the ADA no more than an afterthought.
In the next few articles in this series, we’ll explore the duty to accommodate in the context of various types of disabilities. Each case is fact specific but from reviewing the case law we can get an understanding of what accommodation rights are likely to apply to different situations.
