USA – WASHINGTON Trends and Developments Contributed by: Alexander A Baehr and Molly Gibbons, Summit Law Group
Summit Law Group 315 Fifth Avenue South Suite1000 Seattle WA 98104 USA Tel: +1 206 676 7039 Fax: +1 206 676 7001 Web: www.summitlaw.com
Outlook for Washington State Litigation in Terms of Employment Law, Privacy Law and Jury Selection Employment law and privacy law are anticipat- ed to fuel Washington state litigation in 2025. First, Washington is one of the few states to have comprehensive privacy legislation (includ- ing a private right of action) aimed at protecting against the unauthorised use or storage of pri- vate health-related information. Second, on the employment front, litigation will continue owing to recent state legislative enactments together with interpretive guidance from state courts and administrative agencies. Finally, added care in jury selection in Washington state courts is required, with Washington being one of the few states in the USA to enact a court rule to pre- clude racial bias in juror selection. Privacy law perspective On 31 March 2024, Washington state’s My Health My Data Act (Revised Code of Wash- ington (RCW) 19.373 et seq) came into force. The My Health My Data Act is a comprehen- sive consumer health privacy law imposing sig- nificant notice and consent provisions before a regulated entity may “collect” or process health and health-related data from a consumer in Washington state.
The My Health My Data Act has the potential to spur significant litigation, owing to its inclu- sion of a private right of action via Washington state’s Consumer Protection Act (CPA) (RCW 19.86 et seq), as well as the specific finding that the privacy of a consumer’s health data is a “fundamental right” under the Washington Con- stitution (RCW 19.373.005). The Act is unique and ground-breaking in its efforts to incorpo- rate European Data Protection concepts into the realm of US health data privacy legislation. Broad scope of entities subject to My Health My Data Act The My Health My Data Act applies to “regulated entities”, which are defined as any legal entity that: • conducts business in Washington state or produces or provides products or services that are targeted at consumers in Washington state; and • alone, or jointly, determines the purpose and means of collecting, processing, sharing, or selling consumer health data. Regulated entities are not limited to Washington- based businesses. However, the definition does exclude governmental agencies and those who
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