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Washington Law Restricts Employers’ Access to Medical Records in WLAD Cases

Washington recently passed a law limiting discovery of medical records and other medical information for discrimination claims brought under the Washington Law Against Discrimination (WLAD). The law went into effect on June 7, 2018.

Under the new law (codified at RCW 49.60.510), the medical records of a WLAD plaintiff seeking noneconomic damages are privileged (and therefore not discoverable) unless (a) the plaintiff alleges that the employer’s conduct caused a “specific diagnosable physical or psychiatric injury,” (b) the “plaintiff relies on the records or testimony of a health care provider or expert witness,” or (c) the plaintiff alleges disability discrimination or failure to accommodate a disability.

Even if one of the above exceptions is shown, the law limits discovery to:

  • records created within two years before the alleged unlawful act, unless the court finds "exceptional circumstances" to extend that time period; and

  • records that relate “specifically to the diagnosable injury, to the health care provider or providers on which the claimant relies in the action, or to the disability specifically at issue in the allegation.”

The law impacts an employer's ability to identify other causes of any claimed injuries. It is also a marked change from the previous rule set out by the Washington Court of Appeals in Lodis v. Corbis Holdings, which held that the psychologist-patient privilege is automatically waived (and medical records are thereby discoverable) when a plaintiff claims emotional harm damages.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VIII, Number 226

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About this Author

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Kyle is an advisor and employment litigator in Ogletree Deakins' Seattle office. He represents employers in state and federal courts, as well as before administrative agencies.

Kyle has experience handling employers against alleged claims for discrimination, harassment, retaliation, constructive discharge, and wrongful termination. 

Kyle also has experience in employee non-compete, non-disclosure, non-solicitation, and misappropriation of trade secret claims. Prior to joining Ogletree Deakins, Kyle practiced at a...

206-693-7057
Adam Pankratz, Ogletree Deakins Law Firm, Labor and Employment Litigation Attorney
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Mr. Pankratz represents corporations and management in a myriad of employment-related and complex commercial matters, including litigation involving discrimination, retaliation, harassment, wage and hour, wrongful termination, ADA and FMLA leave issues, and other matters in state and federal courts and administrative agencies. Mr. Pankratz has experience successfully representing employers in executive termination, non-compete and unfair competition disputes.  Mr. Pankratz has extensive experience representing employers both locally and nationally on various employment and general commercial ligation matters.  Recent successes include obtaining summary judgment in various employment discrimination and retaliation lawsuits, and obtaining a positive decision on appeal before the Eighth Circuit Court of Appeals.

206-693-7053