HAR §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 terminates an employee because he has cancer, the employer has regarded the employee 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 ( ( 2) (ii) Pose a direct threat which cannoc 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. 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 ½6-101 ( other covered entity; or an organization providing training and apprenticeship programs. "Direct threat" means: (1) A significant risk of substantial harm to (2) 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. 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 46-102 r ( 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 46-103 ( ( 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 in these rules. (2) Disability 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, excluding the use of medical cannabis pursuant to state law. "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. r ( ( 3) ( 4) 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; (8) 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. 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; (8) 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, 46-105 r ( 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; (8) 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; (8) 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 t:; 6-10 6 r ( 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, t;6-107 ( 2) ( (3) 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. 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. 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; r ( ( 4) 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. 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 ~6-109 ( 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 46-ll.O ( (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; 4 6-111 r ( 3) ( 4) ( ( s) (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. 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. 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. 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. t; 6-112 r ( (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. 46-113 r ( (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; 46-114 ( (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) ( E) ( F) 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; 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 The impact of the accommodation upon collective bargaining agreements or civil service laws. [Eff 8/18/94; am 3/5/12; am and comp ] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2, 378-3)