HAR §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; comp ] (Auth: HRS §368-3) (Imp: !IRS §§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 46-117 r ( 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; comp ] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2) §12-46-187 Failure to make reasonable accommodation, Interactive process. (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 to the employer's workspace or the employer's policies, such as leave, zero- tolerance, or drug testing policies, including but not limited to tests for medical cannabis, is needed by the employee to do a job because of limitations caused by a disability. Nothing in this subsection shall be construed to require the employer to make an accommodation for the possession or use of drugs prohibited under state law, or require an employer to make an accommodation that would conflict with specific activities permitted under HAR §12-46-192. (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 L;6-118 ( accommodation. A request for a reasonable accommodation may be made by a third-party, such as a healthcare professional, acting on behalf of the individual in need of an 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; am and comp ] (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 4 6-119 r ( 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. 46-120 ( (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 46-121 (_ 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; comp ] (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). 46-122 ( (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; comp ] (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; comp ] (Auth: HRS §368-3) (Imp: HRS §§378-1, 378-2) §12-46-191 Medical examinations and inquiries specifically permitted. (a) An employer or other t;6-l23 ( 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). ~6-124 ( (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, ~6-125 r ( 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 t;6-1.26 r ( 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; comp ] (Auth: HRS § 368-3) (Imp: HRS § §378-1, 378-2)