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.