Other Personnel & Labor Relations Legislation

Expanding the Definition of Disability (SSB 5340)

In a 2006 decision, McClarty v. Totem Electric, the State Supreme Court provided clarity for employers by adopting the same definition of disability for Washington as the definition in the federal Americans with Disabilities Act. The legislative finding in SSB 5340 states that the McClarty opinion fails to recognize that Washington's antidiscrimination law provides protections independent of federal law.

Although proponents of this legislation stated that it simply “turns back the clock” to codify state law prior to the McClarty decision, it goes much further than that, significantly expanding the definition of disability under Washington law. For example, pre-McClarty law in Washington required that an impairment substantially limit an employee’s ability to do the job in order to constitute a disability. Under this new definition, for claims other than reasonable accommodation, there is no such limitation.

In the bill, "disability" is defined as 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 actually exists. The "disability" exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether it limits the ability to work or engage in any other activity encompassed within Washington's anti-discrimination law. "Impairment" includes a physiological disorder, cosmetic disfigurement, anatomical loss affecting one or more of several specified body systems, and mental, developmental, traumatic, and psychological disorders.

For purposes of qualifying for reasonable accommodation in employment, the employee's impairment must be known by the employer, or be shown through an interactive process to exist in fact. The impairment must either have:

1. a substantially limiting effect upon the individual's ability to perform his or her job, to apply or be considered for a job, or to access equal benefits, privileges, or terms of employment; or
2. the reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.

These definitions will apply to all causes of action that occurred before July 6, 2006 (the date of the McClarty decision) and to those that will occur after the effective date of the act, July 22, 2007.

Family and Medical Leave Insurance (E2SSB 5659)

This bill outlines a basic framework for a family leave insurance program, which would go into effect on October 1, 2009. It would provide $250 per week for a maximum of five weeks of leave taken by a parent following birth or adoption of a child, and would mandate job projection for employees taking leave if they work for an employer with more than 25 employees.

It establishes a 13-member joint legislative task force to study the establishment of a family and medical leave program and report its findings and recommendations, including proposed legislation, to the Legislature by January 1, 2008.

It does not specify the state agency responsible for administering the family leave insurance program, nor does it establish premiums to finance the benefits, instead directing the task force to make recommendations on both issues.

It states that leave under the bill must be taken concurrently with leave taken under the federal Family and Medical Leave Act or the state Family Leave Law, and permits employers to require that leave under the bill be taken concurrently or otherwise coordinated with leave allowed under collective bargaining agreements or employer policies.

Presumptive Disease for Firefighters (ESHB 1833)

The bill expands the diseases and conditions that are presumed to be job-related for firefighters for workers’ compensation purposes, including certain heart injuries and additional cancers. All changes will go into effect July 22, 2007.

A presumption is added for heart problems that are experienced within 24 hours of strenuous physical exertion due to firefighting activities. "Firefighting activities" is defined as fire suppression, fire prevention, emergency medical services, rescue operations, hazardous materials response, aircraft rescue, and training and other assigned duties related to emergency response.

Certain cancers are added to the list of cancers presumed to be occupational diseases. The additional cancers are prostate cancer diagnosed prior to the age of 50, colorectal cancer, multiple myeloma, and testicular cancer.

Under the bill, a firefighter is entitled to attorney fees and other costs when the presumption is upheld on appeal.

The original version of the bill changed the evidence standard from “a preponderance of the evidence” to “clear, cogent and convincing evidence”– which would have made it virtually impossible for an employer to rebut the presumption. This change was not included in the version of the bill that passed.

Governor Gregoire signed the bill on May 15 after vetoing the Legislature’s statement of intent in Section 1. She noted that this section made broad generalizations about the incidence of cardiovascular disease and was concerned about the unintended interpretations of broad generalizations.

Six-Year Collective Bargaining Agreements (SSB 5251)

This legislation allows local governments and their employees to agree to contract terms of up to six years, instead of the current three-year maximum term. It goes into effect on July 22, 2007.

Domestic Partner Rights and Benefits (SSB 5336)

The Governor signed SSB 5336 into law on April 21 and it will go into effect on July 22, 2007. It creates a state domestic partnership registry and provides enhanced rights for same-sex couples, including hospital visitation, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.

Couples would have to share a home, not be married or in a domestic relationship with someone else and be at least 18. Unmarried heterosexual couples will also be eligible to register as domestic partners if one partner is at least 62.

Although SSB 5336 does not affect domestic partnerships created by a city or other subdivision of the state, state registry is required in order to obtain the benefits under this law, and there are other provisions regarding coordination of state and local domestic partnerships.

 
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