In July, the Hawaii Civil Rights Commission (HCRC) posted its proposed amendments to the Hawaii Administrative Rules it oversees after seeking and receiving public comment. Below are some highlights of proposed changes that could impact employers.

Notable definition changes:

• "Ancestry” would be expanded to include association, including marriage, attendance, and participation with persons or organizations of an ancestral group or who are associated with an ancestral group.
  • Why this matters: The expanded definition potentially increases the possibility of a discrimination claim.
• “Conviction” would be added to the definitions as “an adjudication by a court of competent jurisdiction that the defendant committed a crime.” The definition would clarify that it does not include final judgments required to be confidential pursuant to statute; or confidential final judgments such as a deferred acceptance of a no-contest plea that does not ultimately result in a conviction.
  • Why this matters: In conducting criminal background checks on applicants or employees, employers who are relying on the 5/7 year lookback period may need to ensure any conviction considered meets this definition.
• “Employment” would be clarified to apply the ABC test to determine if an individual is an employee.
  • Why this matters: The ABC test is often difficult to prove and may expand anti-discrimination protections to workers who have been considered independent contractors by employers.
• “Harassment” would be added to the definitions and includes conduct related to an individual’s protected class that “otherwise adversely affects an individual’s employment.” This standard would be viewed from the perspective of a reasonable person and not necessarily the target of the conduct.
  • Why this matters: This definition is quite vague and could be interpreted to apply to a broader range of conduct that previously would not have been considered unlawful.

Alignment with the Pregnant Workers Fairness Act
Pregnancy-related sections would eliminate the word “disability” and require employers to provide reasonable accommodation to individuals with “known limitations” and/or who are “affected by pregnancy, childbirth, or related medical conditions.” The language tracks similar to the recently implemented federal Pregnant Workers Fairness Act.

Medical Marijuana
The definition of “Drug” would be updated to exclude the use of medical cannabis (marijuana) pursuant to HRS §329D. Additionally, employers would be required to provide reasonable accommodations for positive drug tests for employees who have a disability and are registered under HRS §329 as a qualifying medical cannabis patient. Employers would not be required to accommodate if:

• The employees’ use, possession, or impairment by cannabis is on the employer’s premises or during work hours;\
• Doing so would cause the employer to violate federal licensing requirements or regulations, or to lose federal contracts or funding; or
• The employer can demonstrate that providing the requested accommodation would cause an undue hardship.

Other changes
Language would be updated throughout the rules to eliminate gendered language (i.e., “male” and “female”) to adopt more gender-neutral language (e.g., “worker” or “individual”).
The proposed rule would eliminate the provision allowing an employer who “believes that it” has a business necessity for a speak-English-only rule to implement such a policy. The revised version could be read to only allow employers that actually have such a necessity to do so.

Transvestism, transsexualism, and gender identity disorders would no longer be excluded from the definition of “Disability.”

The proposed amendments are not yet final, and though the comment period is closed, the HCRC is open to further communication until the process is complete. Employers may submit further comments by email to robin.wurtzel@hawaii.gov, and including “HCRC Proposed Rule Amendments” in the subject line of the email. The HCRC will also be sharing information about a public hearing when one is set.

In the meantime, employers should consider the potential impacts of the rules if they are finalized and start planning for any internal policy or operational changes that may be needed.