The U.S. Court of Appeals for the Ninth Circuit, the federal appellate court with jurisdiction over much of the western United States (including Washington, Oregon, California and Idaho), ruled last week that an employee’s temporary impairment can qualify as a disability under the Americans with Disabilities Act (“ADA”). The Ninth Circuit’s decision resolves an important
Washington to Reinstate Indoor Mask Mandate and Require Proof of Vaccination of Certain Workers
Mask Mandate
Effective August 23, 2021, masks will once again be required in indoor public spaces in Washington, regardless of vaccination status, for everyone over the age of five. Masks will not be required for vaccinated employees in office spaces that are not public-facing, but are still required for unvaccinated employees in such offices. Masks
No Mask, No Problem – Washington Department of Labor & Industries Issues New Guidance for Fully Vaccinated Workers
On May 21, 2021, the Washington Department of Labor & Industries (“L&I”) published new guidance regarding fully vaccinated workers. The new guidance will help employers adjust masking policies to meet the new Centers for Disease Control and Prevention (“CDC”) guidelines adopted by Governor Jay Inslee.
Under the new guidance, most Washington employers need not require
Changes to Washington’s Requirements Regarding Accommodation of Employees at High Risk of Contracting COVID-19
For the past year, Washington employers have been required to accommodate those employees characterized by the CDC as being at high risk of severe illness or death from COVID-19. Required accommodations can include allowing those employees to take extended leaves of absence if alternative work assignments, telework, remote work locations, or social distancing measures are
Ninth Circuit Requires Proof of “But For” Causation for Claims Under Americans with Disabilities Act
On Tuesday, August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims. This standard is considered to make it more difficult for employees to prove discrimination claims than
Washington Legislature Enacts Multiple Anti-Employer Statutes
No man’s life, liberty or property are safe while the legislature is in session.
· Judge Gideon J. Tucker
In the recently concluded session, Washington legislators enacted numerous laws that will adversely affect employers of all sizes across the State. With so many changes, it is key that employers stay up to date and understand the new challenges they will face in running their workplaces.
WASHINGTON HAS ‘BANNED THE BOX’ (2SHB 1298)
Washington is now firmly on the bandwagon to “ban the box,” barring questions about criminal convictions on initial employment applications. Employers are now prohibited from inquiring into an applicant’s criminal background until the employee is determined to be otherwise qualified for the position. The new law thus provides another area where employers have to tread carefully when rejecting applicants—an employer is much more baldly exposed to disparate impact claims arising from applicants rejected after the employer had determined they were otherwise qualified for the position. The law includes several exceptions, including for law enforcement, employers whose employees would have unsupervised access to children or vulnerable adults, and other employers required by law to conduct criminal background checks. The Attorney General’s Office is in charge of enforcing the law, and employers face an escalating system with increased fines for each subsequent violation.
Suggested Action: Remove any criminal background questions from job applications. While the statute bars advertising that states “no felons” or “no criminal background” or the like, nothing precludes employers from advising applicants at the time they apply that they will have to pass a criminal background check once they have been determined to be qualified for the job. Employers should monitor applicants screened out by the results of a criminal background check. If an employer detects a disparate impact as a result of that screening, the employer should ensure that its actions are consistent with business necessity.
Continue Reading Washington Legislature Enacts Multiple Anti-Employer Statutes
Washington Court of Appeals Expands “Jeopardy” Element of Claim for Wrongful Discharge in Violation of Public Policy
This month the Washington State Court of Appeals, Division III issued a ruling in Becker v. Community Health Systems, Inc. that expands protections in a wrongful termination action based on violation of a public policy.
In Becker, the Plaintiff, a former chief financial officer for Community Health Systems, Inc. (“CHS”), alleged that while CHS initially represented that it would have a $4 million operating loss, Becker calculated a projected $12 million operating loss in 2012. When CHS requested Becker revise his projection prior to submitting it to the U.S. Securities and Exchange Commission (“SEC”), Becker refused. CHS placed Becker on a performance improvement plan and conditioned his continued employment on revising the loss projection. Becker documented his concern with the CHS calculation and advised the company that unless it remedied its misconduct he would be forced to resign. CHS accepted Becker’s notice as a resignation.
Becker sued in superior court for wrongful discharge in violation of public policy (he also filed a whistleblower retaliation complaint with the U.S. Occupational Safety and Health Administration). After the trial court denied CHS’s motion to dismiss for failure to state a claim under CR 12(b)(6), CHS sought discretionary review with the Court of Appeals.
Washington Court of Appeals Holds Independent Contractors Are Protected from Retaliation by the Washington Law Against Discrimination
The Washington courts are strict in their interpretation of the classification of individuals as employees versus independent contractors, resulting in many an employer discovering that an “independent contractor” is instead an employee. But the Washington Court of Appeals’ recent ruling in Currier v. Northland Services, Inc., confirms that even those individuals who qualify as bona fide independent contractors will be deemed subject to the full protections of the Washington Law Against Discrimination (“WLAD”), including protection from retaliation.
In Currier, the plaintiff, who worked as an independent contractor truck driver for NSI, overheard another independent contractor make a racist “joke” to a Latino driver. Currier reported the incident to NSI’s quality assurance manager, who informed the dispatchers of Currier’s complaint. Two days later, the dispatchers terminated Currier’s contract, citing “customer service issues” and informing Currier that they had spoken with the other truck drivers and “they had decided that the joke was funny.”
Washington State Supreme Court’s Decision on Religious Accommodation: What It Means for Employers
Employers in Washington should take note of last week’s decision from the Washington State Supreme Court holding that state law allows a claim for failure to reasonably accommodate an employee’s religious practices. That result is hardly surprising, but how the Court reached that result, and its other conclusions along the way, will complicate how businesses in Washington operate. While the obligation to accommodate employees’ bona fide religious practice has existed under federal law since at least the early 1970s, smaller employers not subject to Title VII must now comply — and all employers are now subject to suit for such claims in Washington state courts.
Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees
The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.
Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).
The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.