WASHINGTON EMPLOYERS MUST ACCOMMODATE AN EMPLOYEE UPON NOTICE OF A DISABILITY

Simple notice of an employee's disability is sufficient to trigger a Washington employer's duty to accommodate disabled employees. The duty applies even if employee did not request accommodation. Such was the holding of the U.S. Court of Appeals for the Ninth Circuit which oversees federal trial courts in Washington in Downey v. Crowley Marine Services, Case No. 99-35439 (January 3, 2001). Under the Washington Law Against Discrimination, the employee’s failure to seek an accommodation did not relieve the employer of its duty to accommodate. According to the court, the Washington law imposes a "heightened duty" on employers to accommodate a disability greater than the duty imposed by the federal Americans with Disabilities Act (ADA).

Downey, the employee, suffered from multiple sclerosis. In 1995, he was given leave from his job as a marine operations engineer on a boat. While leave may have been a sufficient accommodation in 1995, it was not sufficient after Downey could not return to his job. "At that point, [the employer] was obligated to identify possible jobs which Downey could perform and assist him in applying for those jobs." The Court concluded there was an issue of fact for trial over whether there were other jobs Downey could perform.

The court distinguished the obligation imposed under the federal ADA, which was discussed in Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000) (en banc). Barnett was the subject of an NSSL E-mail Advisory on November 8, 2000. Barnett held that the ADA obligates an employer to engage in an interactive process with the employee to find a reasonable accommodation when an employee or employee's representative gives "notice" of his or her "disability and the desire for accommodation." Even under the ADA, however, the court said there may be "circumstances" where an employee is unable to make such a request so that the employer must "assist in initiating the interactive process."

Whenever a Washington employer knows of a disability it must affirmatively look for ways to accommodate that disability, even where the employee does not request an accommodation. While the federal ADA does not explicitly impose such an onerous burden, other employers should not sit back and assume there is no obligation to accommodate an employee absent an express request for an accommodation. Even under the federal ADA, courts have held that requests for accommodations may be inferred from the circumstances and there are some "circumstances" where a duty to accommodate may arise even if no request is made.

Text of the Downey case is available at http://laws.findlaw.com/9th/9935439.html.