Legal Requirements

There are several nondiscrimination laws that provide protection to people with disabilities in the employment arena. Some of these include, but are not limited to, the Americans with Disabilities Act (ADA) the Washington State Law Against Discrimination (RCW 49.60), and the Family Medical Leave Act (29 CFR Part 825). It is important for employers to understand the impact of these nondiscrimination laws on the employment process, and that, in general, one law does not invalidate or limit any other federal, state, or local law that provides greater or equal protection to people with disabilities. As employers are seeking guidance to include people with disabilities in the hiring process, it is important to come to recognize those situations where one law is more applicable than the other.

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act is the federal law that gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications.

Who is covered?

To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Employer Obligations

The Title I employment provisions apply to private employers with fifteen (15) or more employees, State and local governments, employment agencies, and labor unions. The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.

The Equal Employment Opportunity Commission enforces the part of the ADA that prohibits job discrimination. Click here http://www.adainformation.org/documents/titleI/emplr_resp.aspto find out more about your responsibilities as an employer under the Americans with Disabilities Act

Click here to see the full text of the law.

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The Washington State Law Against Discrimination

The Washington State Human Rights Commission ( HRC ) enforces the Washington State Law Against Discrimination. The mission of the HRC is to eliminate and prevent discrimination in Washington State through the fair application of the law, efficient use of resources, and establishment of productive partnerships in the community.

Who is covered?

To be protected under the Washington State Law Against Discrimination, an individual who has a sensory, mental, or physical condition that is determined to be medically cognizable or diagnosable; exists as a record or history; or is perceived to exist whether or not it exists in fact. A condition is a sensory, mental, or physical disability if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment. This means that if a person has some kind of medical condition that makes it hard for them to do their job, or if someone is treated badly at work because the supervisor thinks the worker has a disability (when they don't), it can be considered a disability.

Is the federal law different?

The biggest difference between state and federal law is that federal law requires the medical condition to be permanent or long lasting. Federal law also requires the disability to have an impact on a major life function. State law covers medical conditions that are temporary or have short duration. State law also applies to permanent or long-term conditions.

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Employer Obligations

Under the law, if it is because of a person's race, creed, color, national origin, sex, marital status, age (40+), disability, retaliation, or use of a trained dog guide or service animal by a person with a disability:

An EMPLOYER with eight (8) or more employees may not:

1. refuse to hire a person,
2. discharge or bar a person from a job,
3. discriminate in compensation or other terms or conditions of employment,
4. print, circulate, or use any discriminatory statement, advertisement, publication, job application form, or make any inquiry in connection with prospective employment that is discriminatory.

EMPLOYMENT AGENCIES may not:

1. discriminate in classification or referrals for employment,
2. print or circulate any discriminatory statement, advertisement, or publication, or
3. use discriminatory employment application forms, or inquiries made in connection with prospective employment.

Click here for more information on the Washington Human Rights Commission.

Click here to see the full text of the law.

http://apps.leg.wa.gov/RCW/default.aspx?cite=49.60.180

The Family Medical Leave Act (FMLA)

The Family Medical Leave Act of 1993 requires that covered employers must grant an eligible employee up to a total of twelve (12) workweeks of unpaid leave during any 12-month period for one or more of the following reasons: for the birth and care of the newborn child of the employee; for placement with the employee of a son or daughter for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition.

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What Employers are Covered

An employer covered by FMLA is any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Employers covered by FMLA also include any person acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer, any successor in interest of a covered employer, and any public agency. Public agencies are covered employers without regard to the number of employees employed. Public as well as private elementary and secondary schools are also covered employers without regard to the number of employees employed.

Who is an Eligible employee

An "eligible employee'' is an employee of a covered employer who: has been employed by the employer for at least 12 months, and. has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/ casual employment qualifies as "at least 12 months,'' 52 weeks is deemed to be equal to 12 months.

Click here to see the full text of the law and regulations.

The Rehabilitation Act

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. The term "program or activity" includes all of the operations of

(a) "A department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(b) The entity of such a State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government."

The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act.

Click herehttp://www.usdoj.gov/crt/ada/cguide.htm#anchor65610 to go the DOJ publication entitled "A Guide to Disability Rights Laws" or

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