Haw. Code R. § 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.

Notes

Haw. Code R. § 12-46-191

[Eff 8/18/94] (Auth: HRS § 368-3) (Imp: HRS §§ 378-1, 378-2)