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.