Disability Accommodation No Longer Medical Necessity in Washington State

In a decision last week, Johnson v. Chevron, the Washington State Court of Appeals held that an employee was not required to prove that his disability accommodation was “medically necessary” to enable him to perfrom his job. Johnson had sued the employer, asserting state law claims for race discrimination (disparate treatment) and disability discrimination (disparate treatment and failure to reasonably accommodate). The trial court granted summary judgment in the employer’s favor on Johnson’s accommodation claim, and the employer prevailed after a jury trial on the remaining claims.

The Appeals Court reversed concluding that: 1) “[t]he evidence was sufficient for a jury to find either that Johnson’s impairment had a substantially limiting effect on his ability to perform his job, or that the evidence, including medical documentation, established a reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would become substantially limiting[;]” and 2) the trial court had erred when it instructed the jury that Johnson was required to produce comparator evidence in support of his disparate treatment claims.
Importantly, the Court of Appeals rejected the proposition that Johnson was required to show that accommodation was “medically necessary” to enable him to perform his job. The Appeals Court ruling states that the 2007 statutory changes, which retroactively revised the Washington Law Against Discrimination’s definition of “disability” for accommodation purposes supersede, the “common law definitions” used in earlier WA disability case law, and that:

“‘Medical necessity’ is no longer the sole basis for a right to accommodation. Under the new statute, either the impairment must be the source of a substantial limitation or there must be medical documentation indicating a reasonable likelihood that engaging in the job duties without accommodation ‘would aggravate the impairment to the extent that it would create a substantially limiting effect.’”

This decision runs afoul of earlier Washington case law including Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 194 (2001) and Pulcino v v. Federal Express Corp., 141 Wn.2d 629, 640 (2000). I suspect this case will be appealed by Chevron to our State Supreme Court. For the full decision, see: http://case.lawmemo.com/wa/johnson.pdf .

 

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

The Best of the Season's Greetings!

“Blessed is the season which engages the whole world in a conspiracy of love!” – Hamilton Wright Mabie

To my clients and my colleagues, thank you for your trust and your business this year. May your holiday season and your New Year be wonderful and bright.

The Definition of Independent Contractor in Washington State Is In The Wind...

The Washington State Court of Appeals has tackled a case of first impression in their decision on a 2004 case, Anfinson v. FedEx. The issue involves the definition of an “independent contractor” under the State’s Minimum Wage Act (MWA).

In 2004, a class action lawsuit was filed against FedEx in King County Superior Court alleging that FedEx misclassified 320 pick-up and delivery drivers as independent contractors. These drivers worked for the FedEx Home Delivery and FedEx Ground divisions between December 2001 and December 2004. After a four week trial in March, 2009, the jury returned a verdict for FedEx, finding that the drivers were independent contractors. The drivers appealed and, on December 20, 2010, the Court of Appeals issued a 40-page decision reversing the judgment against the drivers and remanding the case back to the trial court for further proceedings. The Appeals Court found that several of the key jury instructions were legally wrong.

Specifically, the Court held that the Fair Labor Standards Act (FLSA) ”economic realities” test applies because the Washington MWA is modeled on the FLSA. The specific “economic realities” test that the Court of Appeals used is the 6-factor test used by the majority of federal circuits, which includes the degree of the alleged employer’s “right of control” over the alleged employee as merely one of the 6 factors, not the most important factor.

The Court expressly rejected the use of Washington tort law for purposes of determining whether someone is an “employee” under Washington’s MWA. It stated that ”the purpose of the distinction between an employee and an independent contractor is … substantially different in these two areas of law. While the common law ‘right to control’ test was developed to define an employer’s liability for injuries caused by his employee, the purpose of the MWA is to provide remedial protections to workers.”

The Court also addressed several other instructional issues, including how one proves liability to a class under the Washington MWA, and whether the commonality standard used at the class certification has any remaining relevance at the trial phase. In short, FedEx’s victory was reversed and the case is being remanded for a new trial. The entire decision can be read here: http://case.lawmemo.com/wa/anfinson.pdf

It is expected that FedEx will seek review of this decision by the Washington Supreme Court. Stay tuned…

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

New Year's Resolution Time!

It’s that time of year, time to make your New Year’s resolutions. When you’re looking at the needs of your business and your clients’ businesses, do not forget the importance of respect and professionalism training for your staff and your managers.

Companies that incorporate a consistent diversity training program and advocate diversity in the workplace experience valuable benefits such as:

♦ Higher employee retention rates,

♦ Improved employee (individual and team) performance and morale,

♦ Reduced harassment incidences, charges, and discrimination lawsuits, and

♦ Improved workplace staffing (diversity recruitment).

Add respect and professionalism and performance management training to the top of your New Year’s resolution list!

Respect & Professionalism

Last night, I completed training for a Pacific Northwest client with approximately 200 employees. This endeavor included 12 sessions of Respect and Professionalism training (including 4 in Spanish with the help of an interpreter) and 5 sessions of manager training on Maintaining a Workplace Free of Discrimination, Harassment & Retaliation as well as Performance Management Training.

In conjunction with these training sessions, I am assisting the client in revising the Company handbook and policies. It was a pleasure for me to get to work so closely with this client while they tackle some of the big issues facing their workforce.