Q. What is the definition of disability in the state of Washington?
As of July 21, 2007, the definition of disability, found in RCW 49.60.040 is as follows:
(25) (a) "Disability" means 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.
(b) 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.
(c) For purposes of this definition, "impairment" includes, but is not limited to:
(i) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
(ii) Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Q. Does this definition cover all uses of the word “disability,” including services or benefits programs?
No, it only changes the definition for purposes of nondiscrimination.
Q. How does this definition differ from the Americans with Disabilities Act (ADA or federal) definition?
The Washington State definition is broader and covers a greater number of impairments and medical, mental, or psychological conditions. Temporary conditions are covered under the Washington State definition, but are not covered under the ADA. Conditions that are ameliorated or mitigated by medication or other means are disabilities under the Washington State definition, but are often not considered to be disabilities under the ADA. Under the Washington State definition, there is no requirement that a condition must have an impact on a major life activity, or that the impact of the condition be substantially limiting.
Q. What characteristics are not disabilities?
Personality traits such as chronic tardiness or irritability are not in and of themselves disabilities (although they may be symptoms of disabilities). Physical traits such as being left handed or being short are not disabilities. (Though there are medical and genetic conditions that cause extreme short stature that are disabilities.) A normal pregnancy is not considered to be a disability, although pregnancy related medical conditions, such as gestational diabetes or hypertension, can sometimes be disabilities. Discrimination against a pregnant woman is prohibited under the Washington Law Against Discrimination as sex discrimination. Pregnancy and maternity discrimination are covered by other sections of the Washington Law Against Discrimination.
Q. Is drug or alcohol addiction a disability?
The use of illegal drugs is not protected. However if someone is recovering from drug addiction, they are considered to have a disability. Alcoholics are considered to have a disability. Behavior standards in the workplace and elsewhere continue to apply; nondiscrimination law is not an excuse for violent, threatening, or improper behavior anywhere. Please request the WSHRC’s Questions and Answers on drug and alcohol addiction issues for more information.
Q. What does it mean to have a “record of” a disability?
This means that the person was previously diagnosed with having a disability, or that the person has a history of having a disability. An example of this is a person who had a heart condition, and had open heart surgery, but is currently having no heart problems. Because of this person’s past medical record of heart problems, this person is protected under the law.
Q. Can a person self-diagnose a disability, that is to say, decide for themselves that they have a disability?
Generally, a disability should be medically cognizable. Medical diagnosis is one excellent way of determining this. Some disabilities, such as blindness, deafness, and paraplegia, are self-evident. Mental, emotional, and psychological disabilities should always be medically diagnosed by a certified and credentialed mental health practitioner. In some situations, such as depression, the medical profession has encouraged general practitioner medical doctors to diagnose and treat the condition. In almost no circumstances would a herbologist, naturopath, or acupuncturist be able to make an acceptable diagnosis of a mental, emotional, or psychological condition that would qualify as a disability under the law.
Q. What does it mean to be “regarded as” having a disability?
This means that the person is treated by a covered entity (employer, landlord, place of public accommodation, etc.) as though the person has a disability even though the person is not a person with a disability. An example of this may be a police officer who has gone through a traumatic shooting event, and is then assumed by her employer to have a psychological disorder, such as post traumatic stress disorder, due to the shooting, even though the officer does not have a psychological disorder.
Q. What does it mean to have a “history of” a disability?
This means that in the past the person has been a person with a disability, but that presently, they may not be a person with a disability, or it may not be apparent that they are a person with a disability. Again, an example of this is the person who had a heart condition, and had open heart surgery, but is currently having no heart problems. Because of this person’s past history of heart problems, this person is protected under the law.
Q. Is AIDS/HIV a disability?
AIDS and HIV, as well as Hepatitis C, are considered to be disabilities. People with these conditions are protected under the law. These conditions are covered further under the Washington Law Against Discrimination, Revised Code of Washington (RCW) 49.60.172 and 49.60.174.
Q. How will the retroactivity section of the 2007 disability legislation affect me?
The 2007 act relating to the definition of disability in the Washington Law Against Discrimination includes a retroactivity section which reads, “This act is remedial and retroactive, and applies to all causes of action occurring before July 6, 2006, and to all causes of action occurring on or after the effective date of this act.” If you have a case involving a claim of disability discrimination pending with a state court or had a pending claim at the time of the McClarty decision, you should consult your attorney for advice. If you had a case involving a claim of disability discrimination pending before the WSHRC that was closed between July 2006 and July 2007, your case will be reviewed by the WSHRC to determine if the retroactivity clause affects your case. If your case was closed solely because of the McClarty decision and falls within the retroactivity clause, it will be reopened for a full investigation. You and the other party will be notified if this occurs.
Q. What is a reasonable accommodation?
When we are talking about something at work, this is a request to make some kind of change on the job. The change needs to allow someone with a disability to get the job done. If the disability makes work hard for you and a change will help get the job done. This is called a reasonable accommodation.
Some examples include, but are not limited to the following. A new chair because of a back injury. A change in work schedule to go to regular medical appointments. Some time off work to recover from an injury/surgery. Some changes in parts of the job that are not major changes.
The basic rule when we talk about a reasonable accommodation request is that some kind of change in the normal work environment is needed. As long as the change is needed for the worker to get the job done and is connected to someone’s disability. This should then result in both parties talking. This talk should be about can be done to help the worker. The employer doesn’t have to grant the change that the employee asks for. The change needs to help the employee remove barriers so the worker can get the job done.
Under state law the employer can decide that there isn’t a reasonable change they can make to the job. If so then the employer needs to look for another job for the employee. The employee needs to be able to do the new job though. The employer can move the employee to a different job, shift, or workday.
When an employer decides that they can’t make a reasonable change to the job for the worker they can let the worker go. If the employer does this, then the employer still needs to help the worker find a job with them after the worker is let go.
Q. I hear the term “essential job functions” used about disabilities. What does this mean?
This is the term that the American’s with Disabilities Act (ADA) uses to see what the basic parts of a job are. The important parts of the job are determined by how often they are done or how important they are. The most important parts are considered when a work change is requested.
Under state law being able to properly perform the important parts of the job is the key part of making a change at work. This refers to the normal parts of the major job duties that makeup the job. This may mean a change or removal of minor job parts to reasonably accommodate the employee’s disability.
Q. Is alcoholism or drug use/addiction considered a disability?
Use of illegal drugs is not protected under the law. However, if someone is recovering from alcohol or drug abuse and needs a change at work to recover then this is covered under the law. Usually, this means time off work to attend counseling sessions or AA meetings. Time off work for these meetings is okay to ask for.
Q. Do laws covering people with disabilities require employers to hire a person with a disability?
The basic answer is no. However, the laws protecting people with disabilities are meant to protect people who can perform the job. If the person with a disability can’t perform the job, with or without a change at work, then they are not qualified for the job. Someone that cannot do the job doesn’t have to be hired.
Q. How does an employer know if an employee needs a reasonable accommodation?
An employee needs to tell the employer what the work change is and that it is needed because of a disability. The employer does not need to provide a work change before the employee tells them. For example: Walking into work with a cast on your foot is not notice that you need a change at work.
When a disability is obvious, like a missing foot or arm, it may be enough notice for the employer to ask about a work change. When the disability is not obvious the employee needs to tell the employer. Most of the time it is the worker that needs to tell the employer of the need for a change at work.
Q. When is a reasonable accommodation not reasonable?
There may be many reasons why the specific work change someone asks for is not granted. If a bona fide occupational qualification exists for a specific position that does not allow changes then this is one reason for a denial. If the employer can’t afford the change at work is another. This is called an undue hardship.
Undue hardship is determined when you look at the size of the employer and the assets available to them. Other factors would be whether the cost can be included in planned remodeling or repairs. Also other laws or contracts may be a reason for denial.
Undue hardship means that the work change would create great problems or expense. The employer must show that the work change would be overly costly, far-reaching, sizeable or disruptive. The employer could also show that the work change would basically alter the nature or operation of what they do.
A company with lots of money will have a hard time proving undue hardship. However, a small employer with a small amount of money may be able to easily prove undue hardship.
Q. What is an “able worker with a disability”?
This phrase is about a person who has a disability and can get the job done. If the person with a disability can’t do the job then that person is not an able worker.
Q. What exactly is a “trained guide dog” or “trained service animal”?
A trained guide dog is a one that is trained for the purpose of guiding blind persons. Or it could be a dog that is trained to assist hearing-impaired persons. They don’t have to use a harness or other special equipment.
A trained service animal is any animal that is trained to help the disabled person. As long as the trained animal helps a disabled person achieve success at work or at home it may qualify. Sometimes the training needed can be just for basic needs. However, the law does not protect an animal in training as a service animal.
For example: A dog that is aware of when its owner is about to have a seizure and warns the owner. The training may be to obey verbal commands of the owner and is house broken.
There is no requirement for animals to be formally trained or certified.