Hawaii Administrative Rules 9
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. Persons with a disability are entitled to equal employment opportunities as are available to persons without a disability. In 2009 the Legislature passed Act 30 and in 2010 the Legislature passed Act 139, which directed the commission to adopt administrative rules to conform, at minimum, to the definitions contained in the Americans with Disabilities Act Amendments Act (ADAAA), P.L. 110-325. Consistent with the ADAAA and its implementing regulations, the definition of disability is to be construed broadly in favor of expansive coverage to the maximum extent permitted by Chapter 378, HRS. The primary object of attention in cases brought under Chapter 378 and these administrative rules should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the person meets the definition of disability. The determination of whether a person has a disability should not demand extensive analysis. 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; am 3/5/12 ] (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 is subjected to a prohibited action because of any actual or perceived physical or mental impairment that is not both transitory and minor, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. For purposes of this subchapter, “transitory” is defined as lasting or expected to last six months or less.
Example:
If an employer refuses to hire an applicant because of skin graft scars, the employer has regarded the applicant as a person with a disability.
Example:
If an employer refuses to hire an applicant because of skin graft scars, the employer has regarded the applicant as a person with a disability.
“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, as described in these rules.
(2) Disability does not include transvestism, transsexualism, or gender identity disorders not resulting from physical impairments. Disability also does not include pedophilia, exhibitionism, voyeurism, 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:
(1) Basic activities that most people 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, eating, sleeping, bending, concentrating, thinking, communicating, interacting with others, and working; and
(2) The operation of a major bodily function, including, but not limited to, functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genito-urinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body.
“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, immune, circulatory, hemic and lymphatic, skin, and endocrine; or
(B) Any mental or psychological disorder, such as an intellectual disability
(formerly termed 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; deafness; blindness; partially or completely missing limbs; mobility impairments requiring the use of a wheelchair; autism; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; AIDS; HIV infection or seropositivity; cancer; heart disease; diabetes; alcoholism; intellectual disability (formerly termed mental retardation); emotional illness; specific learning disabilities; developmental disabilities; bipolar disorder; post traumatic stress disorder; obsessive compulsive disorder; schizophrenia; and major 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. However, a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definition. Alternatively, a pregnancy-related impairment may constitute a “record of” a substantially limiting impairment, or may be covered under the “regarded as” prong if it is the basis for a prohibited employment action and is not transitory and minor.
(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” with respect to a 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 an applicant with a disability to be considered for the position such 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 person with a disability to perform the essential functions of that position;
(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; or
(D) Modifications or adjustments to schedules or leave policies to enable an employee with record of an impairment that previously substantially limited, but no longer substantially limits a major life activity, to attend follow-up or monitoring appointments from a health care provider.
(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”:
(1) In general means limited in the ability to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or severely or significantly restrict, a person from performing a major life activity in order to be considered substantially limiting.
(2) The following factors may be considered in determining whether a person is substantially limited in a major life activity:
(A) The condition under which the person performs the major life activity;
(B) The duration of time it takes the person to perform the major life activity; and
(C) The manner in which the person performs the major life activity.
(3) Certain impairments such as blindness, deafness, an intellectual disability (formerly termed mental retardation), partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, schizophrenia, HIV infection, and AIDS should easily be concluded to be substantially limiting.
(4) The limitation resulting from an impairment is determined without regard to mitigating measures such as medicines; medical supplies, equipment or appliances; low vision devices; prosthetics including limbs and devices; hearing aid(s) and cochlear implant(s) or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations; auxiliary aids or services; learned behavioral or adaptive neurological modifications; or psychotherapy, behavioral therapy or physical therapy.
(5) Non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.
(6) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples of impairments that may be episodic or in remission include, but are not limited to, epilepsy, multiple sclerosis, cancer, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder and schizophrenia.
(7) An impairment substantially limits the major life activity of “working” if it substantially limits a person’s ability to perform either a class of jobs or a broad range of jobs in various classes as compared to most people 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.
Example:
A person whose job requires heavy lifting develops a disability that prevents her from lifting more than fifty pounds and from performing not only her existing job but also other jobs that would similarly require heavy lifting. That person would be substantially limited in working because she is substantially limited in performing the class of jobs that require heavy lifting.
(8) Multiple impairments that combine to substantially limit one or more major life activities can constitute a disability.
(9) In determining whether a person has a disability under the “actual disability” or “record of” prongs of the definition of disability, the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve.
Example:
A person with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.
“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; am 3/5/12 ] (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 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; am 3/5/12 ] (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 applicant or employee with a disability who is otherwise qualified, 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 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 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 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 qualified.
(e) An employer or other covered entity is not required to make a reasonable accommodation to a person who meets the definition of disability solely under the “regarded as” prong. [Eff 8/18/94; am 3/5/12 ] (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 paratransit service) 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.
(8) Claims based on transitory and minor impairments under the “regarded as” prong. It may be a defense to a claim of discrimination by a person claiming coverage under the “regarded as” prong of the definition of disability that the impairment is or would be transitory and minor. A covered entity must demonstrate that the impairment is both “transitory” and “minor.” Whether the impairment is or would be transitory and minor is to be determined objectively. An employer or other covered entity may not defeat “regarded as” coverage of a person simply by demonstrating that it subjectively believed the impairment was transitory and minor. [Eff 8/18/94; am 3/5/12 ] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2, 378-3)
