HOUSE OF REPRESENTATIVES

H.C.R. NO.

78

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 
   


HOUSE CONCURRENT

RESOLUTION

 

requesting the department of labor and industrial relations to investigate instances of employment discrimination on the basis of aN EMPLOYEE'S illness.

 

 

WHEREAS, the State has long held on the public policy level that it is in the best interests of our citizenry to protect employees when they are ill or injured; and

WHEREAS, wage replacement programs such as the Workers' Compensation Law and the Temporary Disability Insurance Law were enacted specifically because the Legislature acknowledged the importance of making employees "whole" during times of illness and injury not only for the benefit of the worker, but also for the stability of businesses and our economy, and for the health and welfare of our people; and

WHEREAS, while sick leave is a benefit provided on a voluntary basis by employers, if an employer uses the voluntary provision of sick leave as an enticement to attract and retain employees, then these employers should also be required to provide that benefit without the employee fearing reprisal for the legitimate use of that benefit in accordance with the employer's workplace policies or a collective bargaining agreement; and

WHEREAS, on a bill heard by the House Committee on Labor and Public Employment, H.B. No. 2216, the Director of Labor and Industrial Relations (Director) testified that there are remedies already available to workers when they are discriminated against on the basis of an illness, including:

(1) The federal Americans' with Disabilities Act (ADA);

(2) Hawaii employment discrimination statutes; and

(3) Case law providing persons with a cause of action if they are discriminated against when a "public policy" is violated;

and

WHEREAS, after carefully reviewing the law, the House Committee on Labor and Public Employment (Committee) disagreed with the Director's testimony and found that there are no remedies available for certain employees who are discriminated against by their employer on the basis of an illness; and

WHEREAS, to obtain protections under the ADA and chapter 378, Hawaii Revised Statutes (HRS), the employee must first show that the discrimination was based on a disability, which is defined as an illness that affects "one or more of the major life functions"; and

WHEREAS, if the illness is of a nonchronic nature, such as a cold, the flu, or a twisted ankle, even if the illness or injury is being treated by a physician who informs the employer that the employee is under the physician's care and unable to work, the employee would not have any recourse if the employer reprimands or disciplines the employee for being ill or injured; and

WHEREAS, regarding the public doctrine cause of action under Parnar v. Americana Hotels, 65 Haw. 370 (1982), a person has a cause of action if the employer's actions violated "a clear mandate of public policy" as embodied in a statute, rule, or regulation; and

WHEREAS, as confirmed by the Director, no such public policy protecting the use of sick leave for illnesses of a nonchronic and short-term nature is currently in existence in statute, rule, or regulation; and

WHEREAS, based on this, the Committee found that certain employees would not be able to seek redress if they are discriminated against on the basis of their illness; and

WHEREAS, at that same public hearing, the Committee received testimony from the IBEW, AFL-CIO, and ILWU that a growing number of employers in the State are subverting sick leave provisions of collective bargaining agreements and employment policies by adopting so-called "no fault attendance policies"; and

WHEREAS, these policies penalize an employee for absence from work irrespective of the reason for the absence from work and without regard to "fault"; and

WHEREAS, employees with totally legitimate, incapacitating illnesses or diseases are suspended or discharged from employment for poor attendance, even where they provide thoroughly documented proof of their medical conditions; and

WHEREAS, the only infraction these persons commit is that the duration of their absence exceeds certain arbitrary guidelines imposed by their employers; and

WHEREAS, Hawaii's labor laws, including those pertaining to sick leave, family leave, and other compensation in employment are administered by the Department of Labor and Industrial Relations; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-second Legislature of the State of Hawaii, Regular Session of 2004, the Senate concurring, that the Director of Labor and Industrial Relations is requested to investigate instances of discrimination in employment based on an employee's illness; and

BE IT FURTHER RESOLVED that the investigation shall include a survey of the sick leave policies of all businesses situated in the State that employ 100 or more workers, and the number of instances where employees have received any adverse action based on the employee's use of sick leave for legitimate purposes; and

BE IT FURTHER RESOLVED that the Director submit the report to the Legislature at least twenty days prior to the convening of the Regular Session of 2005; and

BE IT FURTHER RESOLVED that this body asserts that the legitimate use of sick leave within the limits agreed to by collective bargaining or a valid employment policy should never be a basis for suspension, discharge, or any other method of unfair discrimination in the conditions of employment; and

BE IT FURTHER RESOLVED that it is the intent of the Legislature that employees should never be deemed expendable and subject to discharge merely because of an authentic illness or disability; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Director of Labor and Industrial Relations, President of the Hawaii Chapter of the IBEW, President of the Hawaii Chapter of the AFL-CIO, and President of ILWU, Local 142.

 

 

 

OFFERED BY:

_____________________________

Report Title:

Requesting the Department of Labor and Industrial Relations to investigate instances of employment discrimination on the basis of an employee's illness.