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. 

Marijuana and Employment: What is a truly “Green” Workplace in Washington

Washington State has been at the forefront in allowing access to marijuana for medical and, more recently, recreational purposes. See RCW 69.51A (Medical use of Marijuana Act or “MUMA”) and RCW 69.50 (Uniform Controlled Substance Act). These state laws have decriminalized marijuana possession and use. To be clear, this has not impacted federal law, which still categorizes marijuana as a schedule I controlled substance. See 21 U.S.C. § 801 et seq. Because of this, at least in part, Washington courts have refused to expand MUMA’s protections in other settings, including the workplace. In fact, the Washington State Supreme Court has expressly held that MUMA does not prohibit “an employer from discharging an employee for medical marijuana use.” See Roe v. TeleTech Customer Care Management LLC, 171 Wn.2d 736, 760 (2011). The Court in Roe also held that an employee terminated for authorized use of medical marijuana does not have any civil remedy against her former employer. Id. The Court cited language in the MUMA statute, which only allows “patients with terminal or debilitating illness to legally use marijuana when authorized by their physician,” and it accomplishes this goal by giving these patients an affirmative defense to criminal prosecution. Id., at 758. In fact, a number of state and federal courts have ruled that federal agents, housing authorities, and employers can take adverse actions against individuals who use medical marijuana even when authorized by state law. See Raich v. Gonzales, 545 U.S. 1 (2005); Barber v. Gonzales, 2005 U.S. Dist. LEXIS (2005); Assenberg v. Anacortes Housing Authority, 268 Fed.Appx. 643 (2008); Ross v. Ragingwire Communications, 42 Cal. 4th 920 (2008).

Medical Marijuana, pc iStock
It should be noted that, as part of his dissent in Roe, the late Justice Chambers disagreed with his colleagues “exacting” examination of MUMA and argued the law created a public policy basis for an aggrieved employee to pursue a wrongful termination claim. Justice Chambers’ dissent indicates there may be room for argument and reconsideration in the future. In other words, it is impossible to predict how changing social views and the nascent marijuana industry might influence future decisions by Washington Courts. For practical purposes, employees and employers should pay close attention when considering marijuana issues in the workplace. While Roe holds that termination for marijuana use is lawful, a plaintiff might prevail on a similar claim if they could demonstrate an underlying disability motivated the termination. This is because aggrieved employees are only required to show a protected class (such as a qualifying disability) was a substantial factor leading to an adverse action; not necessarily the only factor. See Scrivener v. Clark College, 334 P.3d 541 (2014). At the same time, employees must tread with care. Even though State law now permits marijuana use for medical and recreational purposes, there are no bright line restrictions precluding an employer from taking adverse action. Washington is an “at-will” state where marijuana use could constitute grounds for termination of employment under Roe.
If you have any questions about your potential risks as an employee or employer, you should contact an attorney to better understand your options.

 

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. 

Congratulations to Our Newest Member, Mark Davis

Things at our firm just keep getting busier and busier – and that’s a good thing. To make sure we have the bandwidth necessary to meet all of our clients’ needs, we have expanded a bit and would like to recognize the hard work and achievement of our lawyers. In addition to the two attorneys who joined our ranks recently, one of our associates was invited to become a member of our firm this month.

 Mark Davis has been practicing law in Washington since 2007.  In building his practice, Mark has established a track record of representing individuals and businesses with passion and integrity, and in doing so has created a name for himself as a skilled trial attorney.  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).   Mark’s tireless efforts on behalf of his clients have been highlighted by his recent selection as a Rising Star among attorneys in Washington State, a prestigious award named by Super Lawyers and only bestowed upon less than 2.5 percent of lawyers in the State.  Whatever the matter, Mark does his best to obtain justice for each client as swiftly as possible.  He sets a great standard of practice and it’s a high bar we strive to maintain.

Mark is a team player and a hard worker. When Mark’s not hard at work in his office or in meetings with 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.

So with our sincerest gratitude and excitement we are proud to recognize this achievement.

Congratulations, Mark!

Employee Rights: Personnel Files

Access to complete and accurate records is essential to preserving your rights in the workplace. Any time there is a dispute in the office, whether it be a disciplinary matter or personality conflict, accurate documentation almost always trumps verbal allegations, i.e., he said she said. In more serious situations, employee records play an important role in determining whether an individual has been subjected to unwarranted discipline, harassment, or even discrimination. Thus, it is important for individuals to know their rights and remain actively involved when it comes to the contents of their personnel files.

Washington Administrative Coe

Fortunately, Washington statute (RCW 49.12., et seq.) affords employees the right to access and even contribute to their personnel files. More specifically, RCW 49.12.240 and 49.12.250, impose a mandatory requirement upon employers to make personnel files available for inspection. Should an employee find information in their personnel file which they believe is irrelevant or erroneous, they are entitled to request removal of offending information and have a corrective statement added to their file. These rights continue even after situations where an employee is terminated. In fact, the Washington Administrative Code (Section 296-126-050) requires employers to provide a signed statement setting forth the reason(s) for any termination decision within 10 business days of receiving a request from a former employee. Employers also must keep personnel files on record for no less than three years.

In sum, it is important for all employees to know what is in their personnel files. Much like keeping up to date on a credit score, it is much easier to address problems when they occur as opposed to months or years later. In the event of an adverse action, such as a demotion or termination, having an accurate and complete personnel file is critical to determining an employee’s future rights and possible remedies.

 

IMG_0906This is the first installment in a series of posts on employee rights, led by attorney Mark Davis , who has successfully represented numerous employee rights cases. 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.