On February 24, 1993, the Governor signed Executive Order 93-03, specifically implementing the Americans with Disabilities Act (ADA) for the state of Washington. The Act makes it unlawful to discriminate against individuals on the basis of disability in the employment, services, programs, or activities of the state. In the coming months we will be writing more specifically about the Act, including how to make a complaint, how the act is enforced and its impact on individuals with disabilities in the state of WA.

For more information about the American with Disabilities Act (ADA) in general, visit: http://www.ada.gov/ and for Washington and other states in the northwest, visit this very informative site: http://www.dbtacnorthwest.org/

Please find below another great article from Nolo highlighting important protections under the American with Disabilities Act.

by Attorney Amy DelPo

Employers may not discriminate against applicants and employees with disabilities.

People with disabilities make valuable contributions at work — if they are given the opportunity to do so. In the past decade, the federal government and many state governments have passed laws that give people with disabilities this opportunity. The main federal law is called the Americans With Disabilities Act (ADA), and it and similar state laws have changed the face of the American workforce by prohibiting discrimination against people with disabilities and by requiring employers to accommodate the disabilities of employees — and applicants — when possible.

Who Is Covered

The ADA and most state laws protect “qualified workers with disabilities.” Thus, someone must be a qualified worker and must have a legally recognized disability to be protected by the ADA. Let’s look more closely at these issues.

A qualified worker is a worker who can perform most basic and necessary job duties, with or without some form of accommodation from you.

There are three ways in which a worker can qualify for protection under the ADA:

• The worker has a physical or mental impairment that substantially limits a major life activity (such as the ability to walk, talk, see, hear, breathe, reason, work, or take care of oneself). Courts tend not to categorically characterize certain conditions as disabilities. Instead, they consider the effect of the particular condition on the particular employee.
• The worker has a record or history of impairment. In other words, you may not make employment decisions based on your employee’s past disability.
• You regard the worker – even incorrectly — as having a disability. In other words, you can’t treat workers less favorably because you believe them to be disabled, even if you are wrong.

For an impairment to be a legal disability, it must be long term. Temporary impairments, such as pregnancy or broken bones, are not covered by the ADA (but may be covered by other laws.)

Reasonable Accommodation

Accommodating a worker means providing assistance or making changes in the job or workplace that will enable the worker to do the job. For example, an employer might lower the height of a desktop to accommodate a worker in a wheelchair; provide TDD telephone equipment for a worker whose hearing is impaired; or provide a quiet, distraction-free workspace for a worker with attention deficit disorder.

Negotiating an Accommodation

It is your employee’s responsibility to inform you of the disability and request a reasonable accommodation — you are not legally required to guess at what might help the employee do his or her job. However, once an employee informs you of his or her disability, you must engage in what the law calls a “flexible interactive process” — essentially, a brainstorming dialogue with your worker to figure out what kinds of accommodations might be effective and practical. You do not have to give your worker the precise accommodation he or she requests, but you must work together to come up with a reasonable solution.

Undue Hardship Exception

You don’t have to provide an accommodation if it would cause your business “undue hardship.” For instance, if the cost of an accommodation would eat up an entire year’s profits (building a new wing on your office building, for example), you don’t have to do it. Whether an accommodation qualifies as undue hardship depends on a number of factors, including:

• the cost of the accommodation
• the size and financial resources of your business
• the structure of your business, and
• the effect the accommodation would have on your business.

You and the employee may have different opinions about what constitutes a reasonable accommodation and what would be an undue hardship. If you’re unsure whether you must provide a disabled employee with a specific accommodation, you might want to get some legal help.

Alcohol and Drugs

Alcohol and drug use pose special problems under the ADA. Employees who use (or have used) alcohol or drugs may be disabled under the law. However, an employer can require these employees to meet the same work standards — including not drinking or using drugs on the job — as non disabled employees. Here are some guidelines to follow when dealing with these tricky issues:

• Alcoholism. Alcoholism is a disability covered by the ADA. This means that an employer cannot fire or discipline a worker simply for being an alcoholic. However, an employer can fire or discipline an alcoholic worker for failing to meet work-related performance and behavior standards imposed on all employees — even if the worker fails to meet these standards because of alcohol abuse.
• Illegal drug use. The ADA does not protect employees who currently use or are addicted to illegal drugs. These workers are not considered “disabled” within the meaning of the law and therefore don’t have the right to be free from discrimination or to receive a reasonable accommodation. However, the ADA does cover workers who are no longer using drugs and have successfully completed (or are currently participating in) a supervised drug rehabilitation program.
• Use of legal drugs. If an employee is taking prescription medication or over-the-counter drugs to treat a disability, you may have to accommodate that employee’s use of drugs and the side effects that the drugs have on the employee. However, you do not have to accommodate legal drug use if you cannot find a reasonable accommodation.

As reported by the CBC in Canada, after 22 years, the US is lifting its travel ban against foreigners infected with HIV and AIDS.  South Korea has also given into international pressure and has lifted its travel ban as well. We are over the moon thrilled with these events and hope all Countries with a similar ban will reconsider such discriminatory polices.  For a touching story about one of the first Canadians to cross the Washington State border since the US ban has been lifted, please read the below CBC article or click here:

I just stumbled across this blog post about a recent decision by a Canadian court which ruled that a Court can order parties to disclose the contents on their Facebook profiles with respect to discovery requests, even if it is a private profile.  As usual, when it comes to the impact such a decision has on social media users, the first thing attorneys are told to do is advise/remind clients that their Social Media profiles are public or could be considered public.  So here it is for the thousandth time to the world at large: FACEBOOK and MYSPACE and TWITTER and DELICIOUS and DIGG and FRIENDSTER etc. could be open to discovery.

The example in this case was that a person claimed to have lost significant enjoyment of their life because of the other party’s negligence.  Included in their suffering was that the victim of negligence couldn’t play certain sports anymore.  The opposing party argued that there might be evidence on the person’s Facebook Profile that proved that his claim was bogus.

The point is that Courts have not yet decided what role Facebook, et. all really plays in our lives.  Is it a Diary or a Newspaper?  What does this mean to regular people?  For myself I think of my  Social Media profiles the same way I think about having a conversation with a friend in a crowded restaurant.  Most of the time people aren’t paying attention and you can say what you need to say.  However, you have to be prepared for the inevitable collective lull in the room that usually happens right when you say something incriminating and out of context, “…when he was finally dead I called my boyfriend and told him, ‘You have some clean-up to do…’”  Talking about a dead mouse can all of a suddenly cause you big problems.

So what do we take away from this case?  Eventually we will have some clearer rules about what our social media profiles are but until then tread carefully and don’t expect unlimited privacy.

The Minority Bar Associations of Washington Joint Committee on Law Firm Diversity announce the release of their Law Firm Diversity Report.  Check out the report at:  http://vabaw.com/Documents/FINAL%20REPORT.pdf