Disability Related Inquiries in the Workplace

The protections afforded to disabled workers are expansive under both federal and state law, including the American with Disabilities Act (ADA) and Washington Law Against Discrimination (“WLAD”), RCW 49.60 et seq. Companies must remain vigilant to ensure they do not run afoul of these protections including the ways in which they communicate with existing and potential employees regarding actual or perceived disabilities. For example, employers are not permitted to make broad inquiries regarding an employee’s health status or medical condition(s). See, Disability Guide published by the Washington State Human Rights Commission as well as the Equal Employment Opportunity Commission (“EEOC”) Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act. This general prohibition is also true with respect to potential employees. In other words, the general guidance is that employers may not ask a potential or existing employee if they are disabled, how they became disabled, if they are taking prescription medication(s), or seeking to obtain medical documentation (amongst other inquiries).

To be clear, employers are not prohibited from asking questions that are not likely to elicit information about a disability. Examples given by the EEOC include questions about an employee’s well-being (e.g., “How are you?), whether the employee can perform their job functions, or whether they have been drinking alcohol. During an interview or application process employers may ask if the potential candidates are able to perform the essential functions of the job with or without an accommodation. While this may be perceived as limiting the ability of an employer to ascertain whether an employee is disabled and/or may need an accommodation, the burden to request an accommodation generally rests with an employee. If this occurs, an employer may then make certain inquiries so the request for an accommodation can be considered and discussed.

However, an employer can make a disability related inquiry in certain circumstances including instances where the employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform their essential job functions will be impaired by a medical condition. Inquiries can also be made if there is a reasonable belief that an employee will pose a direct threat due to a medical condition. Thus, for example, this could occur if an employer observes performance problems and can reasonably attribute the problems to a medical condition. Inquiries may also be allowed in instances where a credible third party provides reliable information that the employee has a medical condition. In sum, employers must generally avoid inquiries into an employees’ health status or medical conditions. It is true that certain situations will require an employer to initiate or participate in an interactive process with its employee but an employer should not preemptively seek medical or health information without first seeking legal counsel as to whether the necessary prerequisites have been met.

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit orwebsite for more information. 

Update on Employment and Recreational Marijuana

Last May, SGFS posted a blog article entitled “Marijuana and Employment: What is truly ‘Green’ Workplace in Washington.”  Recently, the Washington State Human Rights Commission (“HRC”) updated its guidance on related issues in the workplace and specifically included changes to its “Guide to Disability and Washington State Nondiscrimination laws.” 

The link to these materials can be found here.

As detailed in SGFS’s blog post last year, marijuana (even for medical purposes) remains an illegal drug as a matter of federal law and therefore its use is something employer’s do not necessarily have to accommodate or permit by its actual or potential employees.  January’s update to the HRC’s website and written guidance reaches a similar conclusion and clarifies further that because “federal law prohibits the possession of marijuana, the Washington State Human Rights Commission has determined that the use of medical marijuana is not a reasonable accommodation for a disability.”  The HRC also states that “a claim of termination due to a disability because of the results of a drug test will most likely result in an immediate No Reasonable Cause Finding.”  This certainly indicates that any administrative claims filed with the HRC the grounds of disability discrimination for use of medical marijuana will be dismissed even if the use occurs during off-work hours.  The reason being employers cannot be forced to accept or allow accommodations that violate federal law. 

However, the HRC also states that its guidance and conclusions “does not preclude an individual from filing a case in state or federal court.”  This does not necessarily mean that any such claim would be successful, or even meritorious, but it does create confusion as to whether a related disability discrimination claim would survive initial efforts to dismiss on legal grounds.  It is most likely that the HRC’s language in this regard is more an indicator that its guidance does not preclude a person’s ability to access the judicial process by filing a legal claim for discrimination, even if that claim is not supported by the law. At the same time, it also serves as recognition that, in certain factual scenarios, a claim might be actionable in a court of law.  For now, employers should be on solid grounds if they refuse to provide an accommodation in the form of medical and/or recreational marijuana use.  Regardless, it is always recommended that companies obtain legal guidance from an attorney before making any decisions that might negatively impact its employees.

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit or website for more information.