WPI 330.34 Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Definit...

The bracketed paragraphs are to be used in an appropriate case when there is a disagreement as to which of several accommodations might be considered reasonable, or when multiple modes of accommodation are attempted.

The list of accommodations in the instruction's final paragraph is not exclusive.

Use this instruction together with WPI 330.33 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Burden of Proof), and in appropriate cases with WPI 330.36 (Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof) and WPI 330.37 (Employment Discrimination—Essential Function—Definition).

This instruction was modified for this edition to include unpaid medical leave as a reasonable accommodation. Kries v. WA-SPOK Primary Care, LLC, 190 Wn.App. 98, 143, 362 P.3d 974 (2015) (providing unpaid medical leave can qualify as a reasonable accommodation).

The first bracketed paragraph clarifies that when there are multiple modes of accommodating a disability, the employer may choose the accommodation. See Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 779, 249 P.3d 1044 (2011) (citing Griffith v. Boise Cascade, Inc., 111 Wn.App. 436, 444, 45 P.3d 589 (2002)). See also Doe v. Boeing Co., 121 Wn.2d 8, 846 P.2d 531 (1993), in which the court stated that “the Act does not require the employer to offer the precise accommodation which [the plaintiff] requests.” Doe, 121 Wn.2d at 20.

The second bracketed paragraph clarifies that employers are not required to reassign an employee to a position that is already filled, to create a new position, or to eliminate or reassign essential job functions. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 644, 9 P.3d 787 (2000) (“[a]n employer … is not required … to create a new position, to alter the fundamental nature of the job, or to eliminate or reassign essential job functions”).

The third bracketed paragraph clarifies that the accommodation process is a continuing one, and that an employer may attempt different modes of accommodation unless remaining modes of accommodation constitute an undue hardship. An employer will not be liable for failing to accommodate if it ultimately provides a reasonable accommodation, even though original attempts at accommodation were unsuccessful. See Frisino, 160 Wn.App. at 781 (citing Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1051 (9th Cir. 1995)).

If an employee becomes disabled and cannot be accommodated in his or her position, the employer must take affirmative steps to help the employee identify and apply for any vacant position for which the employee is qualified. Davis v. Microsoft Corp., 149 Wn.2d 521, 536–37, 70 P.3d 126 (2003); Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 120, 720 P.2d 793 (1986); Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 636, 708 P.2d 393 (1985); see also Havlina v. Dep't. of Transp., 142 Wn.App. 510, 178 P.3d 354 (2007) (the individual state agency is the employer, not the State of Washington). “The employee's reciprocal duties include informing the employer of his qualifications, ‘applying for all jobs which might fit his abilities,’ and ‘accepting reasonably compensatory work he could perform.’” Davis, 149 Wn.2d at 537 (quoting Dean). This obligation continues after the employee is no longer working for the employer, and “it is for the trier of fact to decide at what point continued attempts to accommodate become an undue burden as opposed to a reasonable requirement.” Wheeler v. Catholic Archdiocese of Seattle, 65 Wn.App. 552, 829 P.2d 196 (1992), affirmed in part on other grounds, 124 Wn.2d 634, 880 P.2d 29 (1994).

No published Washington court decision has expressly approved a jury instruction addressing the requirement that the employer and employee communicate in developing a reasonable accommodation, but Washington courts have long held that employers and employees have an obligation to engage in an “interactive process” to develop a reasonable accommodation to allow a disabled employee to continue to perform his or her job. See, e.g., Goodman v. Boeing Co., 127 Wn.2d 401, 408–409, 899 P.2d 1265 (1995) (a reasonable accommodation envisions an exchange between employer and employee, where each party seeks and shares information to achieve the best match between the employee's capabilities and available positions); Dean, 104 Wn.2d at 637–38 (“It was correspondingly the duty of [the employee] to cooperate with the employer in the hunt for other suitable work by making the employer aware of his qualifications, by applying for all jobs which might fit his abilities, and by accepting reasonably compensatory work he could perform.”). See also Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), vacated on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), wherein the court held that “employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.” Barnett also notes:

Barnett, 228 F.3d at 1114–15; see also Frisino, 160 Wn.App. at 781 (addressing the importance of “a good faith Goodman interactive process” in developing a reasonable accommodation for a disabled employee).

A requested accommodation to transfer to a different supervisor is considered unreasonable as a matter of law. See Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 35 P.3d 1158 (2000); see also RCW 49.60.040(7)(d); Comment to WPI 330.33 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Burden of Proof).

An employer's duty to reasonably accommodate may include modifying or eliminating non-essential job functions, or providing a reasonable accommodation to allow the employee to perform essential job functions, such as by providing access to facilities or modifying work schedules. Davis, 149 Wn.2d at 534–35; Fey v. State, 174 Wn.App. 435, 452, 300 P.3d 435 (2013). An employer does not have to modify or eliminate essential functions. Frisino, 160 Wn.App. at 778 (citing Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 644, 9 P.3d 787 (2000)); see also Harrell v. Dep't of Soc. Health Servs., 170 Wn.App. 386, 398, 285 P.3d 159 (2012).