New Washington Law Restricts Employer Access to Health Care Information in Litigation

One sometimes contentious issue that can arise in employment discrimination cases is the extent to which the employer can have access to a plaintiff’s health care information. From the employer’s point of view such evidence can be directly relevant to a plaintiff’s effort to obtain noneconomic damages for alleged emotional distress and could reveal information (e.g., via statements made to a therapist) germane to the merits of the underlying claims.  From the plaintiffs’ perspective, disclosing such information may seem intrusive or excessive.  Further, potential plaintiffs might be deterred from asserting their claims at all for fear of having to reveal this type of private information.

Effective June 7, 2018, the Washington state legislature amended the Washington Law Against Discrimination (“WLAD”) to provide plaintiffs with protections regarding this disclosure issue. Under the amended law, employers defending against WLAD claims cannot obtain access to health care information where a plaintiff claims only “garden variety” emotional distress, i.e., common emotional distress proved by evidence other than medical records or testimony from a treating health care provider or an expert.

The new law still allows employers access to certain medical records in limited circumstances where the plaintiff (i) alleges a specific diagnosable physical or psychiatric injury caused by the employers’ conduct; (ii) wants to rely on medical records or a health care provider or expert to testify; or (iii) alleges the employer discriminated based on disability or failed to accommodate a disability.

Employers should be mindful of this change in the law when evaluating and defending against potential and actual WLAD claims.