Subchapter 9 (Disability Discrimination)
DISABILITY DISCRIMINATION
§12-46-181 General provisions. Chapter
378, HRS, prohibits any employer or other covered entity from discriminating
in employment against individuals or persons because of a disability.
This subchapter reflects the protections which existed under state
law protecting persons with handicapped status and is declaratory of
existing law. In 1992, the Legislature replaced the term "handicapped
status" with disability but retained the same definition. Persons with
a disability are entitled to equal employment opportunities as are
available to persons without a disability. The examples are used to
provide guidance to the public and only illustrate the particular point
or principle to which they relate in the rules. They should not be
taken out of context as statements of policy that would apply in different
circumstances. To the greatest extent possible, the commission will
interpret the rules consistent with the examples, however, the commission
shall review each case on an individual basis in an effort to seek
an equitable application of this subchapter. [Eff 8/18/94] (Auth: HRS
§368-3) (Imp: HRS §§378-1, 378-2)
§12-46-182 Definitions. As
used in this subchapter, unless the context otherwise requires:
"Being regarded as having such an impairment" means:
(1) Has a physical or mental impairment that does not substantially
limit major life activities but is treated or considered by an employer
or other covered entity as being so limited;
Example:
An employee has mild hypertension which is not substantially limiting.
If the employer reassigns the employee to less strenuous work because
of a belief that the employee is not able to do the regular work, the
employer regarded the individual as having a substantially limiting
impairment.
Example:
An individual has a back condition, such as spondylolysis, which is
not substantially limiting. If an employer does not hire the individual
because of concerns of future risk of injury, the employer regarded
the individual as having a substantially limiting impairment.
(2) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others towards
such impairment; or
Example:
An employee has a prominent facial scar or disfigurement which is
not substantially limiting. If the employer changes the duties of the
employee because of the negative reactions of customers or co-employees,
the employer regarded the individual as having a substantially limiting
impairment.
(3) Has none of the impairments covered in the definition of mental
or physical impairments but is treated or considered by an employer
or other covered entity as having a substantially limiting impairment.
Example:
An employee, who does not have HIV, is discharged by the employer
because of false rumors that the employee has HIV. Even though the
employee has no impairment, the employer regarded the individual as
having a substantially limiting impairment.
"Bona fide occupational qualification" means:
(1) Standards, tests, criteria, methods of administration, or other
employment actions which exclude or discriminate against a class of
persons on the basis of a specified physical or mental impairment,
medical condition, or disability; and:
(A) All or substantially all persons with the impairment, condition,
or disability:
(i) Are unable to perform the essential job functions with or without
reasonable accommodation; or
(ii) Pose a direct threat which cannot be eliminated or reduced by
reasonable accommodation; and
(B) The essence of the business would be undermined if all persons
with the impairment, condition, or disability were not excluded.
Example:
A policy of not hiring any person with a particular back condition
excludes a class of persons based upon a specified physical impairment.
In order to justify the policy as a bona fide occupational qualification,
the employer must establish through factual evidence that all or substantially
all persons with the back condition cannot do the essential functions
of the particular job or pose a direct threat to self or others and
no reasonable accommodations are possible. It is not enough to show
that "some" people cannot do the job or pose a direct threat. The employer
must also establish that the essence (central purpose or principal
function) of the business would be undermined without the exclusionary
policy.
(2) The bona fide occupational qualification exception will be strictly
and narrowly construed and based upon an examination of the employer's
business requirements and the totality of circumstances on a case-by-case
basis.
"Contractual or other arrangement" means, but is
not limited to, a relationship with an employment or referral agency;
labor union, including collective bargaining agreements; an organization
providing fringe benefits to an employee of the employer or other covered
entity; or an organization providing training and apprenticeship programs.
"Direct threat" means:
(1) A significant risk of substantial harm to the health or safety
of the person or others that cannot be eliminated or reduced by reasonable
accommodation based upon an individualized assessment. The risk of
harm should be identifiable, substantial, current, and probable.
(2) The factors to be considered include:
(A) The harm that may result if the person with a disability performed
the essential job functions;
(B) The duration of the risk of harm;
(C) The nature and severity of the potential harm;
(D) Whether the harm may be "significantly greater" than if a non-disabled
person performed the essential job functions;
(E) The likelihood that the potential harm will occur; (F) The imminence
of the potential harm; and
(G) Whether a reasonable accommodation can eliminate or reduce the
risk of harm below the level of direct threat.
Example:
An employee with epilepsy who works with hazardous machinery may not
automatically pose a direct threat to self or others. The employer
must first make an individualized evaluation taking into account such
factors as the type of job; the aspect of the disability and harm it
may cause if the employee performed the essential job functions; the
duration of the risk of harm; the types of seizures which have occurred;
whether there is warning of seizures; the degree of seizure control;
the employee's reliability in taking medication; any side effects;
whether the harm resulting from the employee's epilepsy is significantly
greater than for employees without epilepsy; and possible reasonable
accommodations. Persons who have had no seizures because they regularly
take medication, or who have sufficient advanced warning of a seizure
so that they can stop hazardous activity, would not pose a direct threat
to self or others because the risk of harm was not substantial, current,
or probable.
(3) The belief that a person may pose a direct threat to self or others
shall not be based upon subjective perceptions, irrational fears, patronizing
attitudes, or stereotypes about the nature and effect of a particular
disability or disabilities in general. Generalized fears about risks
from the employment environment, such as exacerbation of the disability
caused by stress, cannot be used to disqualify a person with a disability.
Example:
A person with a history of disabling mental illness cannot be rejected
by an employer because of a generalized fear that the work would trigger
a relapse of the illness. The mere possibility that a person with a
disability may harm the health or safety of self or others is insufficient
to establish a direct threat because the risk of harm is not identifiable,
substantial, current, or probable.
"Disability" means:
(1) With respect to a person:
(A) Having a physical or mental impairment which substantially limits
one or more major life activities;
(B) Having a record of such an impairment; or
(C) Being regarded as having such an impairment.
(2) Disability does not include transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from
physical impairments, other sexual behavior disorders, compulsive gambling,
kleptomania, pyromania, or psychoactive substance use disorders resulting
from current illegal use of drugs.
"Drug" means a controlled substance, as defined in
the Uniform Controlled Substances Act, chapter 329, HRS. Illegal use
of drugs means the use of drugs not taken under the supervision of
a licensed health care professional or other use not authorized by
the Uniform Controlled Substances Act.
"Essential functions" means:
(1) The fundamental job duties of the employment position the person
with a disability holds or desires. The term "essential functions" does
not include the marginal functions of the position.
(2) In determining whether a job function is essential, the focus
should be on the purpose and importance of the function as it relates
to the result to be accomplished, rather than on the manner in which
the function is presently performed. Although it may be essential that
a certain function be performed, often it is not essential that it
be performed in a particular way, as long as the same result is achieved.
(3) A job function may be considered essential for any of several
reasons, including, but not limited to, the following:
(A) The function may be essential because the reason the position
exists is to perform that function;
(B) The function may be essential because of the limited number of
employees available among whom the performance of that job function
can be distributed; or
(C) The function may be highly specialized so that the incumbent in
the position is hired for his or her expertise or ability to perform
the particular function.
(4) Evidence of whether a particular function is essential should
reflect the actual functioning and circumstances of the particular
job. Factors to be considered include, but are not limited to:
(A) The employer's judgment as to which functions are essential;
(B) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(C) The amount of time spent on the job performing the function;
(D) The consequences of not requiring the incumbent to perform the
function;
(E) The terms of a collective bargaining agreement;
(F) The work experience of past incumbents in the job; or
(G) The current work experience of incumbents in similar jobs.
"Having a record of such impairment" means having
a history of, or having been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
Example:
Persons who have had cancer, heart disease, other debilitating illnesses,
or mental illness, which substantially limited a major life activity,
and whose illnesses are either cured, controlled, or in remission,
have a history of having a physical impairment that substantially limits
a major life activity.
"Job-related and consistent with business necessity" means:
(1) A legitimate measure or qualification for a specific job which
has a substantial relationship to successful performance of essential
job functions. Factors to be considered include, but are not limited
to:
(A) Ability to perform the essential job functions;
(B) Manifest relationship to the job in question;
(C) Manifest relationship to a legitimate job performance objective
of the employer, such as safety and efficiency; or
(D) Unavailability of any less discriminatory alternatives.
(2) Factors that are not to be considered include, but are not limited
to:
(A) Customer preference;
(B) Employee morale;
(C) Corporate image;
(D) Convenience;
(E) Future need to fill other positions in a line of progression where
the other positions have qualification standards or other criteria,
which are bona fide occupational qualifications based upon disability,
not applicable to the particular position;
(F) Possibility of increased insurance costs because of disability;
and
(G) Possibility that the person may have a high rate of absenteeism
in the future because of disability.
"Major life activities" means basic activities and
functions which the average person in the general population can perform
with little or no difficulty, including, but not limited to, caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, reading, sitting, standing, lifting, reaching,
and working.
"Physical or mental impairment" means:
(1) In general:
(A) Any physiological disorder, or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genito-urinary,
hemic and lymphatic, skin, and endocrine; or
(B) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities.
(2) Physical or mental impairments include, but are not limited to,
such conditions, diseases, and infections as: orthopedic, visual, speech,
and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy;
multiple sclerosis; AIDS; HIV infection or seropositivity; cancer;
heart disease; diabetes; alcoholism; mental retardation; emotional
illness; specific learning disabilities; developmental disabilities;
and manic depression.
(3) Physical or mental impairments do not include physical, psychological,
environmental, cultural, or economic characteristics, such as, but
not limited to, eye or hair color; left-handedness; height, weight,
or muscle tone that do not result from a physiological disorder; a
characteristic predisposition to illness or disease; pregnancy; personality
traits such as poor judgment or a quick temper when they are not symptoms
of a mental or psychological disorder; poverty; a lack of education
or illiteracy; a prison record; and sexual orientation.
(4) Drug use shall be considered a mental or physical impairment when
a person:
(A) Has successfully completed a supervised drug rehabilitation program
and is no longer engaging in current illegal use of drugs;
(B) Has otherwise been rehabilitated successfully and is no longer
engaging in current illegal use of drugs;
(C) Is participating in a supervised rehabilitation program, a recognized
self-help program, or an employee assistance program, and is under
the supervision of a licensed health care professional for the treatment
of drug use and is no longer engaging in current illegal use of drugs;
or
(D) Is erroneously regarded as engaging in such use, but is not engaging
in such use.
"Qualification standards" means:
(1) The personal and professional attributes including the skill,
experience, education, physical, medical, safety, and other job-related
requirements established by an employer or other covered entity as
requirements which a person must meet in order to be eligible for the
position held or desired.
(2) The term "qualification standard" may include a requirement that
a person shall not pose a direct threat to the health or the safety
of the person or others in the workplace.
"Qualified person with a disability" means a person
with a disability who satisfies:
(1) The requisite skill, experience, education, and other job-related
qualification standards of the employment position such person holds
or desires; and
(2) Who, with or without reasonable accommodation, can perform the
essential functions of such position.
"Reasonable accommodation" means:
(1) In general:
(A) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for
the position such qualified applicant desires;
(B) Modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified person with a disability
to perform the essential functions of that position; or
(C) Modifications or adjustments that enable a covered entity's employee
with a disability to enjoy the same or equal benefits and privileges
of employment as are enjoyed by its other similarly situated employees
without disabilities.
(2) Reasonable accommodation may include, but is not limited to:
(A) Making existing facilities used by employees readily accessible
to and usable by persons with disabilities; and
(B) Job restructuring; part-time or modified work schedules; reassignment
to a vacant position; acquisition or modifications of equipment or
devices; appropriate adjustment or modifications of examinations, training
materials, or policies; the provision of qualified readers or interpreters;
and other similar accommodations for persons with disabilities.
"Substantially limits" means:
(1) In general:
(A) Unable to perform a major life activity that the average person
in the general population can perform; or
(B) Significantly restricted as to the condition, manner, or duration
under which a person can perform a particular major life activity as
compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity.
(2) The following factors should be considered in determining whether
a person is substantially limited in a major life activity:
(A) The nature and severity of the impairment;
(B) The duration or expected duration of the impairment; and
(C) The permanent or long-term impact of, or the expected permanent
or long-term impact of the impairment.
(3) Temporary, non-chronic impairments of short duration with little
or no long-term impact usually are not disabilities. Such non-disabling
impairments may include, but are not limited to, broken limbs, sprained
joints, concussions, appendicitis, and influenza.
(4) Certain impairments such as blindness, deafness, HIV infection,
and AIDS are by their nature substantially limiting.
(5) The limitation resulting from an impairment is determined without
regard to mitigating measures such as medicines or assistive or prosthetic
devices.
(6) With respect to the major life activity of "working":
(A) The term "substantially limits" means significantly restricted
in the ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person having comparable
training, skills, and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the
major life activity of working.
Example:
A baseball pitcher who develops a shoulder injury and can no longer
pitch would not be substantially limited in working because of not
being able to perform the single, particular job of pitching in baseball.
(B) In addition to the factors listed in the definition of "substantially
limits", the following factors should be considered in determining
whether a person is substantially limited in the major life activity
of "working":
(i) The geographical area to which the person has reasonable access;
(ii) The job from which the person has been disqualified because of
an impairment, and the number and types of jobs utilizing similar training,
knowledge, skills, or abilities, within that geographical area, from
which the person is also disqualified because of the impairment (class
of jobs); and
(iii) The job from which the person has been disqualified because
of an impairment, and the number and types of other jobs not utilizing
similar training, knowledge, skills, or abilities, within that geographical
area, from which the person is also disqualified because of the impairment
(broad range of jobs in various classes).
"Undue hardship" means:
(1) Significant difficulty or expense incurred by an employer or other
covered entity with respect to the provision of an accommodation.
(2) In determining whether an accommodation would impose an undue
hardship on an employer or other covered entity, factors to be considered
include:
(A) The nature and net cost of the accommodation needed under this
part, taking into consideration the availability of tax credits and
deductions or outside funding, or both;
(B) The overall financial resources of the facility or facilities
involved in the provision of the accommodation, the number of persons
employed at such facility, and the effect on expenses and resources;
(C) The overall financial resources of the employer or other covered
entity, the overall size of the business of the employer or other covered
entity with respect to the number of its employees, and the number,
type, and location of its facilities;
(D) The type of operation or operations of the employer or other covered
entity, including the composition, structure and functions of the work
force, and the geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the employer
or other covered entity;
(E) The impact of the accommodation upon the operation of the facility,
including the impact on the ability of other employees to perform their
duties and the impact
on the facility's ability to conduct business; and (F) The impact
of the accommodation upon collective bargaining agreements or civil
service laws. [Eff 8/18/94] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2,
378-3)
§12-46-183 Discrimination prohibited. (a)
It is unlawful for an employer or other covered entity to discriminate
on the basis of disability against a qualified person with a disability
in regard to:
(1) Recruitment, advertising, and job application procedures;
(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer,
layoff, termination, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the employer or other covered entity;
(7) Selection and financial support for training, including apprenticeships,
professional meetings, conferences, and other related activities, and
selection for leaves of absence to pursue training; and
(8) Any other term, condition, or privilege of employment, including
activities sponsored by an employer or other covered entity such as
social and recreational programs.
(b) The term discrimination includes, but is not limited to, the acts
made unlawful in sections
12-46-184 through 191, inclusive. [Eff 8/18/94] (Auth: HRS §368-3)
(Imp: HRS §§378-1, 378-2)
§12-46-184 Limiting,
segregating, and classifying. It is unlawful for an employer
or other covered entity to limit, segregate, or classify a job applicant
or employee in a way that adversely affects his or her employment
opportunities or status on the basis of disability. [Eff 8/18/94]
(Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2)
§12-46-185 Contractual
or other arrangements. (a) It is unlawful for an employer
or other covered entity to participate in a contractual or other
arrangement or relationship that has the effect of subjecting the
employer's or entity's own qualified applicant, employee, member,
beneficiary, apprentice, trainee, or other related person with a
disability to the discrimination prohibited by this subchapter.
(b) This section applies to an employer or other covered entity, with
respect to its own applicants, employees, members, beneficiaries, apprentices,
trainees, or other related persons whether the employer or entity offered
the contract or initiated the relationship, or whether the employer
or entity accepted the contract or acceded to the relationship. An
employer or other covered entity is not liable for the actions of the
other party or parties to the contract which only affect that other
party's employees, applicants, or other related persons. [Eff 8/18/94]
(Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2)
§12-46-186 Standards,
criteria, or methods of administration. It is unlawful for
an employer or other covered entity to use standards, criteria, or
methods of administration:
(1) That have the effect of discriminating on the basis of disability;
or
(2) That perpetuate the discrimination of others who are subject to
common administrative control;
unless the employer or covered entity justifies the need for having
the standard, criterion, or method of administration. Standards, criteria,
or methods of administration which exclude a class of persons on the
basis of a specified physical or mental impairment, medical condition,
or disability must be shown to be bona fide occupational qualifications.
Other standards, criteria, or methods of administration which have
the effect of discriminating on the basis of disability or perpetuate
the discrimination of others subject to common administrative control
must be shown to be job-related and consistent with business necessity.
[Eff 8/18/94] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2)
§12-46-187 Failure to make reasonable
accommodation. (a) It is unlawful for an employer or other
covered entity not to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant
or employee with a disability, unless such employer or
entity can demonstrate that the accommodation would impose an undue
hardship on the operation of its business. An employee does not have
to specifically request a "reasonable accommodation", but must only
let the employer know that some adjustment or change is needed to do
a job because of limitations caused by a disability.
(b) To determine the appropriate reasonable accommodation, it shall
be necessary for an employer or other covered entity to initiate an
interactive process, after a request for an accommodation, with the
qualified person with a disability in need of the accommodation. This
process shall identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.
(c) It is unlawful for an employer or other covered entity to deny
employment opportunities to an otherwise qualified applicant or employee
with a disability based on the need of such employer or entity to make
reasonable accommodation to such person's physical or mental impairments.
(d) A qualified person with a disability is not required to accept
an accommodation, aid, service, opportunity, or benefit which such
qualified person chooses not to accept. However, if such person, after
notice by the employer or other covered entity of the possible consequences
of rejecting, rejects a reasonable accommodation, aid, service, opportunity,
or benefit that enables the person to perform the essential functions
of the position held or desired and cannot, as a result of that rejection,
perform the
essential functions of the position, the person will not be considered
a qualified person with a disability. [Eff 8/18/94] (Auth: HRS
§368-3) (Imp: HRS §§378-1, 378-2, 378-3)
§12-46-188 Qualification standards,
tests, and other selection criteria. (a) It is unlawful
for an employer or other covered entity to use qualification standards,
employment tests, or other selection criteria that screen out or
tend to screen out a person with a disability or a class of persons
with disabilities unless the employer or other covered entity justifies
the need for the standard, test, or selection criterion.
(b) Standards, tests, or selection criteria that screen out a person
with a disability or a class of persons with disabilities based upon
specified physical and mental impairments, medical conditions, or disabilities
must be shown to be bona fide occupational qualifications.
Example:
A qualification standard which excludes all persons who have back
impairments would not be considered a bona fide occupational qualification
unless the employer can establish that all or substantially all persons
with back impairments cannot perform the essential job functions or
pose a direct threat to self or others, with or without reasonable
accommodation, and the essence of the business would be undermined
without the standard.
(c) Other standards, tests, or selection criteria, not based upon
specified physical or mental impairments, medical conditions, or disabilities,
that screen out a person with a disability or a class of persons with
disabilities must be shown to be job-related for the position in question
and consistent with business necessity.
Example:
A qualification standard which excludes persons who cannot lift certain
weights would not be considered job-related and consistent with business
necessity unless the employer can establish that the lifting requirement
was an essential job function and there is no reasonable accommodation
available.
(d) It is unlawful for an employer or other covered entity to discriminate
against a person with a disability for reasons related to safety unless
the person poses a direct threat to self or others. The determination
that a person with a disability poses a "direct threat" shall be based
on an individualized assessment of the person's present ability to
safely perform the essential functions of the job, the person's past
and current job history, and reasonable medical judgment that relies
on the current medical knowledge or the best available objective or
scientific evidence, not speculation, considering the factors defined
in "direct threat". The individualized assessment made by the employer
or covered entity shall identify and document the aspect of the disability
and specific risk of harm that would pose the direct threat to self
or others. If a person poses a direct threat, the employer or other
covered entity must try to eliminate or reduce the threat to an acceptable
level through provision of a reasonable accommodation.
(e) It is unlawful for an employer or other covered entity to use
qualification standards, tests, or selection criteria to exclude a
person with a disability or a class of persons with disabilities because
the particular position is part of a line of progression to which persons
in the particular position are expected to advance even though the
qualification standard can be justified for some of the positions in
the line unless the standard, test, or criterion can be justified for
the particular position. The justification for the qualification standard,
test, or selection criterion shall be determined according to subsection
(b), (c), or (d).
Example:
A deaf person cannot be denied an entry level position because the
person to be hired is expected to progress to higher positions with
qualification standards which may exclude the deaf. Even though the
exclusion of the deaf for any higher position can be shown to be a
bona fide occupational qualification, the employer must also establish
that excluding deaf persons in the entry level position is a bona fide
occupational qualification.
(f) It is unlawful for an employer or other covered entity to fail
to select or administer tests concerning employment in the most effective
manner to ensure that, when a test is administered to a job applicant
or employee who has a disability that impairs sensory, manual, or speaking
skills, the test results accurately reflect the skills, aptitude, or
whatever other factor of the applicant or employee that the test purports
to measure, rather than reflecting the impaired sensory, manual, or
speaking skills of such employee or applicant (except where such skills
are the factors that the test purports to measure). [Eff 8/18/94] (Auth:
HRS §368-3) (Imp: HRS §§378-1, 378-2)
§12-46-189 Retaliation, coercion, interference,
or intimidation. (a) It is unlawful to discriminate or take
an adverse action against any person because that person has opposed
any act or practice made unlawful by this subchapter or because that
person made a charge, testified, assisted, or participated in any
manner relating to an investigation, hearing, or proceeding to enforce
any provision contained in this subchapter.
(b) It is unlawful to discriminate or take an adverse action against
an employee based upon the employee's refusal to participate in a medical
examination or inquiry under section 12-46-191(c), which is not job-related
and consistent with business necessity, or a voluntary medical examination
or inquiry under section 12-46-191(e).
(c) It is unlawful to coerce, intimidate, threaten, harass, or interfere
with any person in the exercise or enjoyment of, or because that person
aided, counselled, or encouraged any other person in the exercise of,
any right granted or protected by this subchapter.
(d) It is unlawful to aid, abet, incite, or compel any person to engage
in any act made unlawful by this subchapter.
(e) It is unlawful to attempt to engage in any act made unlawful by
this subchapter. [Eff 8/18/94] (Auth: HRS §368-3) (Imp: HRS §§378-1,
378-2)
§12-46-190 Prohibited medical examinations
and inquiries. (a) Except as permitted by section 12-46-191,
it is unlawful for an employer or other covered entity to:
(1) Conduct a medical examination of an applicant; or
(2) Make inquiries as to whether an applicant is a person with a disability
or as to the nature or severity of such disability.
(b) Except as permitted by section 12-46-191, it is unlawful for an
employer or other covered entity to:
(1) Require a medical examination of an employee; or
(2) Make inquiries as to whether an employee is a person with a disability
or as to the nature or severity of such disability. [Eff 8/18/94] (Auth:
HRS §368-3) (Imp: HRS §§378-1, 378-2)
§12-46-191 Medical examinations and
inquiries specifically permitted. (a) An employer or other
covered entity may make pre-employment inquiries into the ability
of an applicant to perform essential job functions and ask an applicant
to describe or demonstrate how, with or without reasonable accommodation,
the applicant will be able to perform essential job functions.
(b) An employer or other covered entity may require a medical examination
or inquiry, or both, after making an offer of employment to a job applicant
and before the applicant begins his or her employment duties, and may
condition an offer of employment on the results of such examination
or inquiry, or both, if all entering employees in the same job category
are subjected to such an examination or inquiry, or both, regardless
of disability. Information obtained under this subsection shall not
be used for any purposes inconsistent with this subchapter and must
be maintained in accordance with subsection (f). Such post-offer medical
examinations conducted in accordance with this subsection do not have
to be job-related and consistent with business necessity.
(1) If qualification standards, tests, or selection criteria are used
to screen out a person with a disability or a class of persons with
disabilities on the basis of a specified physical or mental impairment,
condition, or disability, the criteria must be shown to be a bona fide
occupational qualification. Other qualification tests, standards, or
selection criteria that screen out a person with a disability or class
of persons with disabilities must be shown to be job-related and consistent
with business necessity.
(2) If any adverse consequences result from a post-offer medical examination,
the employer or other covered entity shall base its action on a medical
examination conducted in accordance with subsection (d).
(c) An employer or other covered entity may require a medical examination
or inquiry, or both, of an employee that is job-related and consistent
with business necessity. The employer or other covered entity bears
the burden of establishing that such medical examination or inquiry,
or both, is job-related and consistent with business necessity and
must provide specific instances or examples of the employee's conduct
which raised concerns about his or her inability to perform essential
job functions or direct threat to self or others, except where an employee
is returning to work after receiving disability benefits, such as workers
compensation.
Example:
In order to justify requiring an employee to undergo a medical examination,
an employer must establish that an employee's recent work performance
raised reasonable concerns that the employee could not perform essential
job functions or posed a direct threat to self or others, with or without
reasonable accommodation. The employer must articulate specific instances
which raised such concerns, except where an employee is returning to
work after receiving disability benefits.
(d) An employer or other covered entity which requires an applicant
or employee to undergo a medical examination shall provide every examiner
with sufficient job information to assess the applicant's or employee's
ability to perform essential job functions or the applicant's or employee's
direct threat potential. The job information shall include an accurate
written description of the essential responsibilities and functions
of the job, and the following rules: the definition of reasonable accommodation
in section 12-46-182 and section 12-46-187. If the employer believes
that the applicant or employee may pose a direct threat to self or
others, the employer shall provide the following rules: the definition
of direct threat in section 12-46-182 and section 12-46-188(d). If
the applicant or employee wishes to go to a second examiner, the employer
or covered entity shall provide the examiner with the same job information.
Information obtained under this subsection shall be collected and maintained
in accordance with subsection (f).
(e) An employer or other covered entity may conduct voluntary medical
examinations and activities, including voluntary medical histories,
which are part of an employee health program available to employees
at the work site. An employer or other covered entity may make inquiries
into the ability of an employee to perform essential job functions.
Information obtained under this subsection shall be maintained in accordance
with subsection (f).
(f) All information related to or obtained under subsections (b),
(c), (d), and (e) regarding the medical examination, condition, or
history of any applicant or employee shall be collected and maintained
on separate forms and in separate medical files and be treated as a
confidential medical record, except that:
(1) Supervisors and managers may be informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations;
(2) First aid and safety personnel may be informed, when appropriate,
if the disability might require emergency treatment; and
(3) Commission employees investigating compliance with this subchapter
shall be provided any and all information on request.
Information obtained under subsections (b), (c), (d), and (e) regarding
the medical condition or history of any applicant or employee shall
not be disclosed to persons who are not entitled to have access to
the information or used for any purpose inconsistent with this subchapter.
(g) A test or inquiry to determine the illegal use of drugs is not
considered a medical examination or inquiry under this subchapter.
[Eff 8/18/94] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2)
§12-46-192 Specific activities permitted. (a)
An employer or other covered entity:
(1) May prohibit the illegal use of drugs and the consumption of alcohol
at the workplace by all employees;
(2) May require that employees not be under the influence of alcohol
or be engaging in the use of illegal drugs at the workplace;
(3) May hold an employee who engaged in the use of illegal drugs to
the same qualification standards for employment or job performance
and behavior to which the employer or other covered entity holds its
other employees, even if any unsatisfactory performance or behavior
is related to the employee's use of illegal drugs;
(4) May hold an employee who is an alcoholic to the same qualification
standards for employment or job performance and behavior to which the
employer or other covered entity holds its other employees, even if
any unsatisfactory performance or behavior is related to the employee's
alcoholism, as long as reasonable accommodation, if requested, is provided
for the performance of essential job functions;
(5) May require that its employees employed in an industry subject
to such regulations comply with the standards established in the regulations
(if any) of federal agencies including, but not limited to, the Departments
of Defense and Transportation, and of the Nuclear Regulatory Commission,
regarding alcohol and the use of illegal drugs;
(6) May require that employees employed in sensitive positions comply
with the regulations (if any) of the United States Departments of Defense
and Transportation and of the Nuclear Regulatory Commission that apply
to employment in sensitive positions subject to such regulations; and
(7) May require a medical examination or inquiry, or both, as permitted
in section 12-46-191, or a test or inquiry to determine the illegal
use of drugs. However, this subchapter does not encourage, prohibit,
or authorize an employer or other covered entity to conduct drug tests
of job applicants or employees to determine the illegal use of drugs
or to make an employment decision based on such test results.
(b) Any information regarding the medical condition or history of
any employee or applicant obtained from a test to determine the illegal
use of drugs, except information regarding the illegal use of drugs,
is subject to the requirements of section 12-46-191(f).
(c) Under title I of the Americans with Disabilities Act, 42 U.S.C.
§12113(d)(1), the Secretary of Health and Human Services is to prepare
a list, to be updated annually, of infectious and communicable diseases
which can be transmitted through the handling of food. If a person
with a disability is disabled by one of the infectious or communicable
diseases included on this list, and if the risk of transmitting the
disease associated with the handling of food cannot be eliminated by
reasonable accommodation, an employer or other covered entity may refuse
to assign or continue to assign such person to a job involving food
handling. However, if the person with a disability is a current employee,
the employer shall consider whether he or she can be accommodated by
reassignment to a vacant position not involving food handling for which
he or she is qualified. [Eff 8/18/94] (Auth: HRS §368-3) (Imp: HRS
§§378-1, 378-2)
§12-46-193 Defenses. An employer
or other covered entity may raise defenses to an allegation of discrimination
under this subchapter including, but not limited to, the following:
(1) Inability to perform. It may be a defense to
a charge of discrimination brought under this subchapter that a person
with a disability is unable to perform an essential job function with
or without a reasonable accommodation.
(2) Business necessity. It may be a defense to a
charge of discrimination brought under this subchapter that:
(A) An alleged application of qualification standards, tests, or criteria
used in the selection of employees screens out or tends to screen out
or otherwise denies a job or benefit to a person with a disability;
or
(B) A uniformly applied standard, criterion, method of administration,
or policy has a disparate impact on a person with a disability or a
class of persons with disabilities; and
the challenged standard, test, criterion, method, or policy has been
shown by the employer or other covered entity to be job-related and
consistent with business necessity in light of the factors in the definition
of job-related and consistent with business necessity; and performance
of essential job functions cannot be accomplished with reasonable accommodation,
as required under this subchapter.
Example:
A job applicant for a field sales representative position, who was
not hired, challenges a driver's license requirement as discriminating
against persons who cannot obtain licenses because of their disabilities.
An employer may be able to defend by showing that driving was an essential
job function, no other transportation alternative (i.e. bus or Handivan)
having less adverse effects upon persons with disabilities was available;
and any accommodation would cause an undue hardship because field sales
representatives had to work alone.
(3) Bona fide occupational qualification. It may
be a defense to a charge of discrimination that an application of qualification
standards, tests, selection criteria, policies, or methods of administration
which is applied to a class of persons on the basis of a specified
physical or mental impairment, medical condition, or disability has
been shown by the employer or other covered entity to be a bona fide
occupational qualification.
Example:
An employer which does not consider for employment a person with hypertension
because of a policy against hiring persons with hypertension due to
safety concerns must establish that all or substantially all persons
with hypertension, regardless of severity, would pose a direct threat
to self or others; no reasonable accommodations are possible; and the
essence of the business would be undermined if all persons with hypertension
were not excluded.
(4) Undue hardship. It may be a defense to a charge
of not making reasonable accommodation that a requested or necessary
accommodation would impose an undue hardship on the operation of the
business.
Example:
An employer would not be required to make unreasonable structural
changes or expensive equipment alterations if there is significant
difficulty or expense based upon the factors listed in the definition
of undue hardship.
(5) Direct threat. It may be a defense to a charge
of discrimination under this subchapter that a person with a disability
posed a direct threat to the health or safety of the person or others
that cannot be eliminated or reduced by reasonable accommodation.
(6) Specific permitted activity. It may be a defense
to a charge of discrimination that the alleged discriminatory action
is specifically permitted under this subchapter or by section 378-3,
HRS.
(7) Good faith. If the employer or covered entity
demonstrates good faith efforts, in consultation with the person with
a disability who has requested an accommodation, to identify and make
a reasonable accommodation that would not cause an undue hardship on
the operation of the business, the employer or other covered entity
may be liable for compensatory damages and other relief but would not
be liable for punitive damages if the good faith offer of accommodation
is found to be not reasonable." [Eff 8/18/94] (Auth: HRS §368-3) (Imp:
HRS §§378-1, 378-2, 378-3)
|