02/22/1995 03:00 PM House L&C

 HL&C - 02/22/95                                                               
 HCR 3 - WORKERS' COMPENSATION PAMPHLET ERRORS                               
                                                                               
 Number 049                                                                    
                                                                               
 ELIZABETH ROBERTS, RESEARCHER FOR REPRESENTATIVE BETTYE DAVIS,                
 Prime Sponsor of HCR 3, explained is resolution relates to                    
 correcting errors in a worker's compensation pamphlet published               
 by the Department of Labor.                                                   
                                                                               
 MS. ROBERTS said the little blue pamphlet entitled "Workers'                  
 Compensation and You," is frequently the first information the                
 injured worker receives.  It is essential the information                     
 contained inside the pamphlet is accurate and up to date.                     
 Unfortunately, the new revised edition contains misleading and                
 unconstitutional information.                                                 
                                                                               
 MS. ROBERTS said there are inconsistencies between statements                 
 made in the pamphlet and the requirements of the Americans with               
 Disabilities Act in that the pamphlet misstates what information              
 may be requested of future employees.  The correction of errors               
 and inconsistencies may take the form of an erratum insert until              
 the next formal revising of the pamphlet.                                     
                                                                               
 MS. ROBERTS stated HCR 3 is a bill that they had hoped wouldn't               
 have to become a bill.  Ms. Roberts quoted from the pamphlet on               
 page 3, under the heading "What If You Don't Tell The Truth," as              
 follows: "There are strict penalties for not telling the truth.               
 When you fill out applications for work, be sure to answer                    
 questions about your health truthfully.  If you lie about your                
 health when you apply for a job, you may not be able to get                   
 workers' compensation benefits if you get hurt." (AS 23.30022).               
 Ms. Roberts stated according to the Americans with Disabilities               
 Act (ADA), it is unconstitutional to ask anybody about their                  
 health until you actually employ them.  She stated they would                 
 like to see this corrected, in the form of an erratum insert.                 
 The Department of Labor has assured her this will be taken care               
 of.  However, she said the pamphlet was published in August, and              
 her office has had no formal notification that anything was                   
 actually going to happen.  She stated Representative Bettye Davis             
 wanted to be assured of a time line when the whole pamphlet                   
 itself will be checked for inconsistencies and misstatements and              
 then corrected.                                                               
                                                                               
 Number 101                                                                    
                                                                               
 CHAIRMAN KOTT asked if Ms. Roberts had noted any other                        
 inconsistencies in the pamphlet, or whether she was asking the                
 department to review this to insure that there was nothing but                
 accurate information provided in the pamphlet                                 
                                                                               
 MS. ROBERTS stated at the beginning of last summer, the                       
 department had contracted out to have the pamphlet revised.                   
 However, the person had quit before the job was done.  She stated             
 that the department then advised Representative Davis' office                 
 that the director of the division had finished the job and, in                
 fact, there are more inconsistencies.  However that director was              
 no longer with the department.  Ms. Roberts stated that she did               
 not have the background to know what else was misleading and that             
 the pamphlet was very complicated, probably too complicated for               
 the average working man.                                                      
                                                                               
 REPRESENTATIVE NORMAN ROKEBERG asked Ms. Roberts if the ADA                   
 statute specifically prohibits inquiring into health status.                  
                                                                               
 MS. ROBERTS read from the ADA as follows:  "Except as permitted,              
 it is unlawful for a covered entity to conduct a medical                      
 examination of an applicant or to make inquiries as to whether an             
 applicant is an individual with a disability or as to the nature              
 or severity of such disability."  She stated that after you hire              
 someone, you may then ask anything you want, for insurance                    
 purposes, or to see if the employee is physically capable of                  
 doing the job.                                                                
                                                                               
 REPRESENTATIVE ROKEBERG commented that this was not asking about              
 health specifically, it was asking about a persons able                       
 bodiedness.                                                                   
                                                                               
 REPRESENTATIVE JERRY SANDERS said when Ms. Roberts stated "except             
 as permitted," this statement covers a large amount of territory.             
                                                                               
 MS. ROBERTS continued to read, as follows:  "Discrimination,                  
 general rule;  no covered entity shall discriminate against a                 
 qualified individual with a disability because of the disability              
 of such individual in regard to job application procedures, the               
 hiring advancement or discharge of employees, employee                        
 compensation, job training and other terms conditions and                     
 privileges of employment."  She stated that you're not allowed to             
 discuss an applicant's health during a job interview, only after              
 the hiring.  This is so you're not prejudiced against people with             
 disabilities.                                                                 
                                                                               
 CHAIRMAN KOTT stated you can ask someone whether or not they can              
 perform certain tasks associated with that job prior to the                   
 actual hiring.                                                                
                                                                               
 REPRESENTATIVE PORTER stated his understanding of the law was you             
 may ask certain questions, and even go so far as to test, prior               
 to hiring, for specifically qualified job requirements.  But                  
 those requirements have to be related specifically to the job,                
 not to some general condition.  He further stated he could see                
 where this paragraph might need to be reworded, but not to the                
 extent that no questions regarding physical conditions may be                 
 asked.                                                                        
                                                                               
 REPRESENTATIVE ROKEBERG stated that he was in full support of                 
 this resolution.                                                              
                                                                               
 CHAIRMAN KOTT said he agreed, but the question he had was how to              
 go about it.  He stated that he felt a resolution was overkill.               
 With the change in Administrations, there is some allowance to                
 make sure things get caught up.  He comment that, "it seems we're             
 killing a fly with a nuclear bomb."                                           
                                                                               
 MS. ROBERTS stated that she had been told it would take two to                
 three weeks for the erratum insert, and two to three months for a             
 reprint.  Representative Davis just wants to be assured that                  
 these guidelines were met.                                                    
                                                                               
 DWIGHT PERKINS, SPECIAL ASSISTANT TO THE COMMISSIONER, DEPARTMENT             
 OF LABOR, stated he had been in contact with Representative                   
 Davis' office.  He stated currently, they were going through a                
 revision of the pamphlet.  He explained that it was hard to read              
 for the average person, and they were working to make it shorter              
 and easier to read.  He referred to what was mentioned earlier                
 about AS 23.3022, if the committee didn't like the wording in the             
 pamphlet, the pamphlet could quote the statue in total;  but, as              
 long as the statute exists, the board must apply it.  He stated               
 that they would have the erratum ready in two to three weeks, and             
 they would forward a copy for the committee to review.                        
                                                                               
 Number 307                                                                    
                                                                               
 CHAIRMAN KOTT asked Mr. Perkins if he agreed the statute cited in             
 the booklet did not conform with the ADA standards.                           
                                                                               
 MR. PERKINS stated it could be a potential conflict.                          
                                                                               
 CHAIRMAN KOTT asked if inconsistent state laws were preempted                 
 under the supremacy clause.                                                   
                                                                               
 MR. PERKINS stated he did not know, but would get back to the                 
 committee on that issue.                                                      
                                                                               
 REPRESENTATIVE BRIAN PORTER stated that this question should be               
 turned over to the Department of Law, which could come up with                
 wording that would balance the existing statute and ADA.                      
                                                                               
 Number 321                                                                    
                                                                               
 REPRESENTATIVE KIM ELTON agreed with Representative Porter.  He               
 stated in reading the pamphlet, it was like reading a legal ad.               
                                                                               
 Number 335                                                                    
                                                                               
 CHAIRMAN KOTT stated that it shouldn't be the responsibility of               
 the committee to thoroughly analyze the pamphlet.  He would ask               
 the Department of Labor, through the Division of Workers'                     
 Compensation, to work on the pamphlet.  He said the committee                 
 would hold the bill.