Hawaii Administrative Rules › Title 12 - DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS › Chapter 46 - PROCEDURE ON COMPLAINTS › Subchapter 9 - DISABILITY DISCRIMINATION › Section 12-46-182 - Definitions

Current through June, 2024
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.