Washington disability law changed dramatically in 2006, when the Washington Supreme Court adopted a new definition of “disability” in its landmark decision, McClarty v. Totem Electric, 157 Wn.2d 214 (2006).  Specifically, the Washington Supreme Court adopted a definition of “disability” in line with the federal Americans with Disabilities Act definition, requiring a person seeking to establish a disability to prove that he or she has: (1) a physical or mental impairment that substantially limits one or more of his or her major life activities; (2) a record of such an impairment; or (3) is regarded as having such an impairment.  McClarty, 157 Wn.ed at 220-29.

On May 4, 2007, however, Washington Governor Christine Gregoire signed into law a new bill that has the effect of overturning and redefining the McClarty decision as it relates to disabilities under the WLAD.  In summary, the bill defines “disability” as including “the presence of a sensory, mental, or physical impairment that: (i) is medically cognizable or diagnosable; or (ii) exists as a record or history; or (iii) is perceived to exist whether or not it exists in fact.”  It further clarifies that “a disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.” 

The new law also addresses reasonable accommodation.  For such purposes, the impairment “must be known or shown through an interactive process to exist” and either must have a substantially limiting effect upon the individual’s ability to perform his or her job, apply or be considered for a job, or access to equal benefits, privileges or terms and conditions of employment; or it must put the employer on notice of the existence of an impairment.  With respect to the latter category, 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 substantially limit the individual. 

Importantly, the law is remedial and retroactive, applying to all causes of action occurring before July 6, 2006 and to all causes of action occurring on or after the act’s effective date.

 What does this mean for Washington employers? 

Unquestionably, the new definition of “disability” is more broad than the ADA definition, and closer to the former Washington definition than the ADA definition adopted in 2006 through McClarty.  In some ways, however, the new law is arguably more restrictive.  Regardless, its impact will be felt immediately by Washington employers attempting to reasonably accommodate disabled employees, and by those already litigating disability discrimination cases whose causes of action occurred before July 6, 2006.  This is of course also true of any causes of action occurring from July 22, 2007 forward.  This new law is complex and different than that of most states throughout the country.  Therefore, be sure to review the new statute for its complete definition and summary of the new law, and to contact your employment lawyer with any questions or concerns you may have about this new law and its impact upon your business.   

Originally appeared in Dorsey's Employment Law Update