being impaired and sent her for a drug test. Te test was positive, and she was fired for violating the Return to Work Agreement. Stewart filed suit, which in part alleged
violations of the Washington Law Against Disabilities (WLAD).12
Te WLAD prohibits
employment discrimination based on a sensory, mental, or physical disability. Te Court pointed out that, “Tere are two types of disability discrimination claims under the WLAD: failure to accommodate and disparate treatment.” Stewart made claims under both. Te Court concluded that Stewart’s
migraine condition was a disability under the WLAD. A disability under WLAD is “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.”13
The Court went further and determined that . . .
“Under Washington law, ‘the side effects of a prescription drug may constitute a disability, so long as those side effects meet the statutory definition’ [citation omitted]. The parties produced evidence to show that the side effects of Dilaudid constitute a mental or physical impairment. And, although Stewart maintained that she was not impaired by the medication, this is irrelevant because the PUD evidently perceived the impairment to exist” [emphasis added].
Te Court concluded that both Stewart’s
migraines and the symptoms of her migraine medication warrant protection under the
WLAD. As a result, PUD should have taken steps to reasonably accommodate Stewart’s disability. Failure to do so “constitutes discrimination unless the PUD can demonstrate that such accommodation would result in an undue hardship to the employer’s business.” A good-faith interactive process is required during which the interactive process is “ongoing.”14 Te Court discussed Stewart’s additional
claim in some detail, but ultimately concluded that PUD’s violation of WLAD entitled Stewart to damages of $1,815,953.78. Te case is on appeal.
What would you do? 1. Are you aware of your state’s disability discrimination law?
2. Do your procedures consider not only the Americans with Disabilities Act (ADA),
12
datia focus
summer 2018
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