Hawaii Bar Journal - April 2021

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BAR JOURNAL

A N O FFICIAL P UBLICATION OF THE H AWAII S TATE BAR A SSOCIATION A PRIL 2021 $5.00

TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 4

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

Accommodating Employees in a Pandemic Under the ADA and Other Anti-Discrimination Laws

by Christopher J. Cole

19 16

Ethics and Social Media: Will You Be My Friend?

by Lennes N. Omuro

24 24

Sections and Related Entities of the Hawaii State Bar Association

HSBA OFFICERS President Levi Hookano President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

OF NOTE 18

Case Notes

22

HSBA Happenings

28 20 29 22 30 28 39

2021 Suspensions Court Briefs Off The Record Classifieds

30 31

EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50.

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Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

On the cover: Spider Lily by Brenda Cablayan. Cablayan is a painter living on the island of ‘Oahu, Hawai‘i.

She started her career as an illustrator in commercial art before turning her attention to fine art. Her paintings capture the ever changing light and colors of the island landscapes.

Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

Accommodating Employees in a

Pandemic

Under the ADA and Other Anti-Discrimination Laws

by Christopher J. Cole.

As Hawai‘i’s businesses reopen or resume operations in the midst of an ongoing global pandemic, many employers may have received objections or requests for special treatment from employees arising out of actual or perceived threats to their well-being posed by the COVID-19 virus, vaccines, or mandates and restrictions. This article surveys the emerging legal trends and guidance from the past year, particularly in reference to federal and Hawai‘i anti-discrimination statutes.

Interpretive guidance issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) in response to the COVID-19 pandemic leads the way,1 with relatively few reported court decisions to date. This developing law reveals common themes. First, employers act on firm legal ground when their policies balance public health concerns and individual rights in a manner consistent with the recommendations and findings of leading public health authorities, such as the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (“CDC”). Second, in addressing accommodation requests, employers’ and employees’ flexibility and creativity in collaborating on a solution is paramount.

Finally, the law recognizes that employers have the right to assess and monitor the effectiveness, parameters or ongoing necessity of temporarily granted accommodations, such as remote work assignments, in light of the evolving public health situation, as well as advances in science and technology.

Overview of Relevant Statutory Provisions The most important statute in this area—and the primary focus of this article—is the federal Americans with Disabilities Act of 1990 (the “ADA”). The ADA prohibits discrimination against disabled workers, and covers private employers with 15 or more employees, as well as state and local government agencies. Hawai‘i’s Employment Practices Law, as amended, Haw. Rev. Stat. Ch. 378-1 et seq., generally tracks the ADA’s provisions, and covers private employers with less than 15 employees.

In addition, Title VII of the Civil Rights Act of 1964’s (“Title

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VII”) prohibition of religious discrimination and the Genetic Information Nondiscrimination Act of 2008 (“GINA”), along with their Hawai‘i analogs set forth in Chapter 378 of the Hawai‘i Revised Statutes, govern certain pandemic-related issues relating to vaccines and health-related inquiries, testing or evaluation. Federal and state occupational safety and health statutes, and their associated regulations, are also relevant to an employer’s “general duty” to provide a safe workplace free of recognized hazards, but fall outside the scope of this article.

Like other anti-discrimination statutes, Part I of the ADA prohibits discrimination against qualified disabled individuals in the “terms and conditions of employment.”2 This gives rise to traditional causes of action, such as claims for disparate treatment and hostile work environment (harassment). The ADA goes a step further by expressly listing specific employment practices deemed to fall within the scope of prohibited discrimination, in some cases without having to prove specific intent to discriminate. Among those expressly prohibited practices are: limiting, segregating or classifying by disability; discriminatory contracts, arrangements or relationships; criteria or qualification standards that tend to screen out disabled individuals; medical or disability-related inquiries or examinations (with certain “safe harbor” exceptions); inaccurate and/or discriminatory testing; and discriminating against the relative of a disabled person.

In addition, the ADA has two specific mandates for employers: (1) the duty to provide reasonable accommodations unless the employer can show it would impose an undue

hardship, and (2) the duty to segregate and safeguard confidential health information generated out of a medical inquiry or examination.3 The first of these mandates is arguably the ADA’s centerpiece. An employer’s duty to provide a reasonable accommodation that does not impose an undue hardship sometimes requires an employer to not only treat disabled workers equally compared to their nondisabled peers, but also in exceptional cases the employer must give them preferential treatment in order to “level the playing field.”4 Perhaps more so than for any other anti-discrimination statute, the ADA’s application to a given set of facts depends on a raft of defined terms that are inter-dependent and refer to each other. These circuitous legal definitions can be confusing to employers and difficult for human resources personnel to apply in practice.

Thus, a “disability” means (1) “a physical or

mental impairment that substantially limits one or more major life activities of such individual,” (2) “a record of such impairment,” or (3) “being regarded as having such impairment.” Congress amended the ADA in 2009 to construe the term “disability” broadly in favor of coverage, but clarified that no reasonable accommodation is required for individuals who are merely “regarded” as disabled under the statute’s third prong. Furthermore, only “qualified individuals” with a disability are entitled to the protections of the ADA. A “qualified individual” is somebody who, “with or without a reasonable accommodation, can perform the essential job functions of the employment position that the individual holds or desires.” “Reasonable accommodation,” in turn, includes a non-exhaustive list of actions that employers must consider taking to enable an individual to perform essential job duties, such as “job restructuring, part-time or modified work sched-

ules, reassignment to a vacant position, acquisition or modification of equipment or devices,” adjusting policies and practices, or providing interpreters or readers for the individual. “Undue hardship” requires an employer to prove that the proposed “action [would require] significant difficulty or expense” in regards to factors such as the employer’s size, resources, finances and operations, the number of employees at the facility, the remoteness of the facility, and the nature of the accommodation. As noted above, the ADA prohibits “qualification standards” that tend to screen out disabled individuals and certain medical or disability-related inquiries or examinations, but an exception is available if the employer can prove that the standards, criteria, inquiries, or examinations are “job-related and consistent with business necessity.” Finally, a qualification standard is alsopermitted where necessary to prevent a “direct threat” to the health or

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safety of the individual or others.5 The Reasonable Accommodation Process Regulations promulgated by the EEOC under the ADA and more than three decades of legal precedent have established guidelines and principles that govern an employer’s duty to provide a reasonable accommodation. In general, no duty to accommodate arises unless and until an employee or job applicant requests an accommodation. No “magic” words are necessary, but an employee must make the employer aware of the need for an accommodation. An express request is not required if an employee can prove that the employer actually knew of the employee’s disability, knew or should have known that the employee experienced workplace difficulties as a result, and knew or should have known that the employee’s disabilities prevented the employee from requesting an accommodation.6 Sometimes, a reasonable accommodation is readily identifiable and easy for the employer to implement. An employer may satisfy its legal obligation under the ADA by granting an individual’s request, but the ADA does not force an employer to provide the precise accommodation that the individual wants or prefers so long as the employer offers to furnish an alternative accommodation that is “reasonable.”7 Many times a solution is not so obvious and can give rise to differences of opinion or a more involved inquiry. In those cases, both the employer and the individual are mutually obligated to engage in an “interactive” dialogue.

In the interactive process, the employer and employee must exchange information with each other in an attempt to find a reasonable accommodation. Employees, for their part, must provide information to employers about their physical or mental limitations and how such impairments affect their functional capabilities, including medical certifications from their treating physician. Courts expect employers to have, and share with the employee, information relevant to their business operations, alternative suitable job openings, if applicable, and whatever other options might be feasible. In court litigation, the outcome of a failure to accommodate claim often turns on who is responsible for any “breakdown” in this interactive process, an issue that is often resolved at the summary judgment stage. For instance, an employee may be at fault for failing to provide requested information or for rejecting a proposed reasonable accommodation that is not his or her first choice. Conversely, an employer may be liable for lengthy delays that frustrate the interactive process or by prematurely terminating an employee.

If a qualified individual with a disability proves that the employer failed or refused to engage in good faith in the interactive process, the employer can still defend against an ADA violation by showing that no reasonable accommodation was possible.8

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Questions and Issues Raised by the Pandemic The COVID-19 pandemic has forced employers to address a host of issues and challenges in dealing with their employees.

Are employers required to permit their employees to work remotely? What if an employee requests special equipment installed at his or her home office? What can employers ask employees about their health or possible exposure to COVID19? What steps can employers implement to keep their customers and employees safe? What should an employer do when an employee objects to complying with the employer’s policies or protective measures? Can an employer require its employees to be vaccinated? These and other questions are addressed below.

Threshold issue: Is a Disability Involved?

Importantly, not all employee health related concerns or requests for special treatment implicate the ADA. Mere “exposure” to the COVID-19 virus, or fear of contracting the disease it causes, do not constitute an “impairment,”9 and therefore do not, by themselves, implicate an employer’s duty to provide an accommodation. On the other hand, an employee may have an underlying physical or mental impairment that makes an employee more susceptible to the virus, or that makes the employee suffer significant anxiety as a result. Whether an employee who actually contracts the disease caused by the COVID-19 virus becomes thereby “disabled” under the ADA depends on the severity of resulting symptoms. The relevant benchmark for measuring whether or not an “impairment substantially limits one or more major life activities of such individual” is to evaluate the impact of the individual’s impairment on at least one of his or her major life activities “as compared to most people in the general population.”10 Because the ADA broadly defines “disability” in favor of coverage, an employer may wish to consider a program that permits all employees to request accommodations, exceptions to policies, or other special treatment regardless of whether or not the employee has a condition that qualifies as a disability.

Significantly, an employer who engages in a practice prohibited by the ADA in response to a “perceived” impairment could trigger statutory coverage under the third prong of the “disability” definition, see 42 U.S.C. § 12102(3),11 whereas a more generous policy to consider requests for good cause, but without inquiry into “disabled” status, may not. An employer who does choose to conduct an inquiry in response to an employee’s accommodation request does not thereby violate the ADA. EEOC guidance confirms that “[a]s with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may

Solutions Start Here Specializing In Resolving Your Challenging Civil Cases effectively meet his needs; and request medical documentation if needed.”12 Whatever policy an employer chooses to adopt, however, it should bear in mind that the scope of its health or disability related inquiries and actual knowledge of the employee’s situation may trigger a duty to provide the requested accommodation, commence an “interactive” discussion, and/or safeguard in a separate file any resulting confidential health information.

Remote Work Working remotely from a home office has become ubiquitous during the pandemic. Even before the pandemic, allowing an employee to work remotely was a potential reasonable accommodation that employers were required to consider, if and as feasible, to enable a qualified disabled employee to perform essential job functions. Accordingly, employers should continue to consider remote work as a potential option to allow employees to continue productive work.13 On the other hand, not every business, operation or job lends itself to a successful remote work paradigm. In addition, the ADA does not require an employer to accommodate a nondisabled employee’s request to work from home to avoid exposing an elder or vulnerable family member with underlying health conditions.

According to the EEOC Guidance, government restrictions and decreased revenues may adversely impact employers in ways that bear on the reasonableness or duration of a requested accommodation, or may create the basis for an “undue hardship” defense that did not exist before the pandemic. Employers are entitled to take into account the temporary or uncertain nature of the pandemic, government restrictions, and other conditions in making decisions regarding remote work and related employee requests for accommodations.

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employees in a facility, division or working group to work from home is not necessarily required to purchase the same equipment and devices for disabled employees’ home offices, such as “stand-up” workstations, as would be required in the usual workplace.

Employers and employees should be creative and flexible in finding a workable solution. For example, an employer may permit a disabled worker to borrow and take home employerowned equipment or devices that he or she used in the office to accommodate the employee’s disability while teleworking from the home office. In conducting an interactive dialogue, an employer is entitled to ask questions and seek medical documentation about the need for the accommodation. Employers may also ask about the resources and equipment that the employee already has available in his or her home.

Finally, the law recognizes that employers should have the latitude to implement accommodations on a temporary or “trial” basis without having such modifications or changes forced on them as a permanent solution. This applies to remote work as well, so an employer may call all employees back to their usual workplace without having to grant automatic exceptions to disabled workers who may have grown accustomed to working from their home offices. As with any requested accommodation, though, an employer cannot automatically reject such requests either. Thus, an employer should either grant the request or undertake an interactive discussion with the employee. In the course of the interactive process, the employer should consider the employee’s request to continue remote work in light of its experience during the pandemic.

Many employers have found that assumptions and concerns about the productivity of employees working remotely proved to be unfounded.

Medical Inquiries and Examinations The EEOC Guidance confirms that employers are entitled to implement policies and practices designed to keep its customers and employees safe from the COVID-19 virus and guard against a “direct threat” to human health and safety.

Such inquiries and examinations should uniformly apply to all employees, and not be targeted at specific individuals or protected classes. For instance, employers may screen employees, take their temperatures, and ask them to self-report any symptoms known to be associated with the disease caused by COVID-19 without violating the ADA. Such symptoms include fever, chills, cough, shortness of breath, sore throat, nausea, diarrhea, vomiting, and loss of the sense of smell or taste.

Employers are entitled to rely on the latest guidance from the CDC as scientific knowledge continues to develop. Employees who report experiencing COVID-19 symptoms may be excluded from the workplace in compliance with CDC guidelines, and employers can request that they obtain medical clearances certifying their fitness for duty before returning to work. Employers may also ask employees if they have been diagnosed with or tested for COVID-19, or have traveled to certain areas known to be associated with a higher transmission rate or virus variants. Employers cannot ask about the health of family members (a prohibited inquiry under GINA), but instead they are allowed to ask their employees if they have had “close contact” with individuals having COVID-19 diagnoses or symptoms.

Employers may always ask absent employees why they were absent, which is not a medical or disability-related inquiry under the ADA. Employers may also require their workers to undergo mandatory COVID-19 tests consistent with CDC guidelines to detect the virus and ascertain whether the employee’s physical presence in the workplace constitutes a “direct threat” to oth-

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ers. A word of caution is warranted, however, for the CDC has indicated that antibody tests do not accurately detect the current presence of the virus or infection and “should not be used to make decisions about returning persons to the workplace.”14 Accordingly, the EEOC Guidance concludes that requiring an antibody test for an employee, or taking adverse employment actions against an employee for any refusal or positive result in the context of an antibody test, would violate the ADA. Any health information generated by these inquiries and examinations, including any temperature check logs, must be kept confidential in a medical file separate from the rest of an employee’s personnel records. Nevertheless, employers may disclose the name of an employee to a public health agency if it discovers that an employee has COVID-19. Also, employers should consider releasing some information about COVID-19 cases to their employees and other interested parties on a “need-to-know” basis, which may include details about the location and timing of the infected individual’s presence onsite, but not necessarily his or her identity or any identifying characteristics.

Assuming that a medical inquiry or examination is permitted as described above, then an employer is entitled to ban an employee from the workplace if he or she refuses to answer a question or undergo the test. Before doing so, though, the employer should ask the employee why he or she is refusing to comply and make efforts to gain the employee’s voluntary cooperation.

Leaves of Absence If an employee’s work requires his or her presence in the workplace, but an otherwise qualified employee with an underlying disability requests a leave of absence due to concerns about COVID-19 exposure and infection, then the employer should respond to that request as it would any other requested accommodation. Case law recognizes that—although a leave of absence may not enable an employee to “perform the essential job functions of the employment position the individual holds or desires”—it may nevertheless constitute a reasonable accommodation where medical evidence indicates that it will allow the employee a chance to recover and return to work in a reasonable timeframe. An employer, of course, may grant such a request in compliance with the ADA, and must at the very least start an interactive discussion with the employee, as described above.

The more difficult question is whether an employer may require an employee whose job requires physical presence at work to take a leave of absence in response to concerns about the employee’s own health when the employee is not requesting any accommodation. As noted above, an employer can exclude an employee from the workplace under the “direct threat”

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defense when the employee reports COVID-19 exposure, or diagnosis, or symptoms, at least until the threat has been determined to no longer exist. An employer acts at its peril, however, if it excludes an employee, who is ready and willing to work, because the employee may be vulnerable to COVID-19 infection due to an underlying health condition or “disability” posing a risk to his or her own health. According to the EEOC Guidance, an employer cannot rely on CDC listings of underlying health conditions that make an individual more susceptible to severe COVID-19 disease in determining that a return to work would pose a “direct threat” to the employee’s own health. Rather, an employer must conduct an “individualized assessment” based on all available information about the employee’s health, exposure and infection risk factors, and other relevant facts. Even if the employer finds that an employee’s condition poses a direct threat to his or her own health under the circumstances, it still cannot exclude the employee from the workplace without first exhausting the reasonable accommodations process, such as consideration of enhanced barriers or personal protective equipment (PPE), job restructuring, job reassignment, and other possibilities.

Employee Objections to an Employer’s Safety Measures Employers are encouraged, and in some instances required, to implement safety measures to prevent or mitigate the likelihood of COVID-19 exposure to their employees and customers. Safety measures can include mandatory use of PPE in the workplace such as facemasks, face shields, goggles and/or gloves, social distancing, protective barriers, hand sanitizers, and regularly wiping down high-touch surfaces. Especially when employers take safety precautions in compliance with CDC and/or OSHA guidelines and those of other leading public health authorities, employers may require that their employees adhere to such practices.15 Some employees may object to certain safety measures that employers require in the workplace or may request an exemption as an accommodation. For example, an employee may be allergic to latex gloves, or have a pre-existing respiratory impairment exacerbated by wearing a mask. A deaf employee may also have a difficult time communicating with coworkers when she is accustomed to reading their lips. There may also be religious accommodations requested under Title VII based on an employee’s sincerely held religious belief or practices, such as a “need for modified equipment due to religious garb.”16 The public policy favoring workplace health and safety strongly supports an employer’s right to insist that employees wear PPE and observe best practices to curb spread of the disease, but employers must also reconcile and address any concerns or accommodation requests on an individual basis

consistent with the processes outline above. For example, non-latex gloves may need to be purchased for those employees with allergies. Similarly, a deaf employee’s difficulty in reading coworkers’ lips could be addressed by permitting different modes of communication such as texts, sign language or emails, or by M asking coworkers to voluntarily wear transparent face shields if necessary to communicate with the deaf employee and if safety is not thereby compromised.

State and local mandates typically include exemptions for individuals with a disability, and might not suffice as a legal excuse or “undue hardship” defense that would justify denying an accommodation. Again, creativity and flexibility may be in order to identify a solution addressing the employee’s concern without significantly increasing threats to the health and safety of others.

Vaccination of Employees Employers are generally entitled to implement a mandatory vaccination program requiring employees to be vaccinated, but they must be prepared to consider and make accommodations for employees with disabilities or sincerely held religious beliefs. Asking for proof of vaccination does not constitute a medical “inquiry” regulated by the ADA. Vaccines required or sponsored by an employer also are not considered a covered medical “examination” or “inquiry” per se, but pre-vaccination questionnaires and forms presented by medical providers to patients can be. When such pre-vaccination inquiries are conducted by an employer or a health provider under contract with an employer, then the employer must take care to ensure that all of the pre-vaccination questions comply with the “medical inquiry” provisions of the ADA and GINA described

above. In that event, according to the EEOC Guidance, the employer must have an evidence-backed reasonable belief that answering the questions as a precursor to receiving the vaccine is necessary to address a “direct threat” in the workplace.

The EEOC Guidance states that employers should also conduct a “direct threat” assessment in response to an employee’s indication that the employee cannot receive a COVID-19 vaccination due to a disability if the vaccine requirement “screens out or tends to screen out an individual with a disability.”17 Under this assessment, the employer must review four factors in determining whether a direct threat would exist if the employee remained in the workplace without being vaccinated: the duration of the risk, the nature and severity of potential harm, the likelihood that the harm will occur, and the imminence of the po-

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The County of Maui, Department of the Prosecuting Attorney, seeks to fill position(s) at the entry to high experience level(s) as a Deputy Prosecuting Attorney. Applicants must have an active Hawaii State Bar license and be in good standing before the Hawaii Supreme Court, have strong oral and written communication skills, and legal research abilities. Applicants should possess excellent analytical ability, good judgment, and the ability to work in a supportive and professional manner with other attorneys, support staff, outside agencies and community. Competitive salary commensurate with years of experience ranging from $66,000 to $130,000. Excellent benefit package and work environment.

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Andrew H. Martin, Acting Prosecuting Attorney Department of the Prosecuting Attorney County of Maui 150 South High Street Wailuku, Maui, Hawaii 96793 E-mail: Prosecuting.Attorney@co.maui.hi.us Website: https://www.mauicounty.gov/123/Prosecuting-Attorney The County of Maui is an Equal Opportunity Employer

tential harm. Even when an employer concludes that a direct threat exists, it cannot exclude the unvaccinated individual from the workplace unless there is no way to reduce or eliminate the risk through a reasonable accommodation (such as, for example, remote work or a leave of absence). If, after exhausting the “direct threat” and “reasonable accommodation” inquiries, the employer still cannot reduce or eliminate the threat to health and safety posed by the unvaccinated employee, only then would the employer be free to exclude that employee from the workplace without violating the ADA. Religion-based requests for an exemption from an employer’s vaccination requirement must be accommodated under Title VII if the employee has a sincerely held religious belief, practice or observance that prevents the employee from receiving the vaccine, unless an

“undue hardship” would result. The EEOC Guidance instructs that “undue hardship” for purposes of Title VII religious discrimination cases means an accommodation that imposes “more than a de minimis cost or burden on the employer.”18 According to the EEOC Guidance, employers should generally accept that an employee has a sincerely held religious belief, practice or observance unless they have an objective basis for challenging the religious nature or sincerity of the alleged religious tenet or practice.

Even if an employee who refuses vaccination poses a “direct threat” that cannot be accommodated under the ADA or Title VII without imposing an “undue hardship” on the employer such that he or she can be removed from the workplace, the EEOC Guidance states that an employer cannot automatically terminate an employee in that situation.

The EEOC Guidance emphasizes that employers are prohibited from taking adverse employment actions against employees in retaliation for requesting an accommodation. This guidance is in some tension with court precedent, including published cases from the Court of Appeals for the Ninth Circuit, holding that “an employer is entitled to defend the adverse employment action on the ground that ‘an individual poses a direct threat to the health or safety of other individuals in the workplace.’” Dark v.

Curry County, 451 F.3d 1078, 1091 (9th Cir. 2006) (quoting 42 U.S.C. § 12113(b)).

Nevertheless, the prospect of being forced to defend its decision in a court of law offers cold comfort to any employer bold enough to fire an employee refusing a vaccine based on its determination that he or she posed a direct threat to coworkers or others. In fact, the Ninth Circuit decision in Dark, notwithstanding its

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recognition of the employer’s direct threat defense, reversed summary judgment on the basis that fact issues existed as to whether some reasonable accommodation, including a leave of absence, might have eliminated the threat to coworkers posed by the plaintiff ’s epileptic seizures that had led to his termination. Id. The EEOC Guidance does not answer the basic, threshold question of whether or not an employer’s vaccine requirement would, in fact, tend to “screen out” disabled individuals generally, or how an employer would go about verifying that it does (or does not) in a particular case as a result of the employee’s specific disability. The EEOC Guidance also does not address the “job-related and consistent with business necessity” defense available to employers under section 12112(6) of the ADA, which is in addition to the “direct threat” defense in section 12113(b) on which the EEOC focused its analysis. Presumably, an employer would be entitled to gather information from the employee in an interactive process to test whether or not the employee actually has a disability that renders the employee unable to receive a vaccine (thereby “screening out” the employee or tending to do so) before making its “direct threat” and “reasonable accommodation” determinations.

As a practical matter, employers’ human resources departments might have a difficult time successfully navigating the labyrinth of legal issues laid out in the EEOC Guidance and case law regarding objections to mandatory vaccines without the assistance of legal counsel. It may prove more expedient for employers simply to excuse objecting workers from mandatory vaccines, especially if and to the extent they are in the minority. Another interesting alternative to a mandatory vaccination program would be to implement a voluntary plan with monetary incentives rewarding employees who decide on their own to get vaccinated. As of the writing of this article, surveys indicate that less than ten percent of employers nationwide plan to implement mandatory vaccination plans.19 Closer to home, a recent Honolulu Civil Beat article reports that wellknown local restaurant chain Zippy’s has plans to encourage their employees to get vaccinated through incentives and educational outreach.20 It will be interesting to see in the coming weeks and months how employers respond to this issue and what steps they take to contribute to the community’s herd immunity goals as well as their own business objectives.

Conclusion Businesses face a daunting task in balancing health and safety, employee rights, and the objective of resuming profitmaking operations during a pandemic. In general, employers have broad leeway to implement safety measures, screen and test their employees for COVID-19 risks, and operate their businesses when they follow public health recommendations such as those issued by the CDC. Employers can avoid legal

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controversy and liability under the ADA, Title VII, GINA and Hawai‘i’s employment discrimination laws by recognizing the rights of individuals who request an accommodation, by safeguarding employees’ confidential health information in a separate file, and by engaging employees in a creative, flexible “interactive” dialogue in an effort to find a workable solution. __________________ 1

The EEOC’s COVID-19 guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” discussed extensively in this article, may be accessed at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-andada-rehabilitation-act-and-other-eeo-laws (hereinafter, referred to as “EEOC Guidance”).

2 42 U.S.C. § 12112(a).

3 42 U.S.C. § 12112(b), (d).

4 Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034, 1056 (C.D. Cal. 2010) (citing US Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002)).

5 42 U.S.C. §§ 12102, 12111-12113.

6 Brown v. Lucky Stores, 246 F.3d 1182, 1189 (9th Cir. 2001).

7 Zivkovic v. So. Cal. Edison, 302 F.3d 1080, 1089 (9th Cir. 2002).

8 Morton v. UPS, 272 F.3d 1249, 1256 (9th Cir. 2001), overruled on other grounds, Bates v. UPS, 511 F.3d 974, 998 (9th Cir. 2007) (en banc).

9 See Parker v. Cenlar FSB, 2021 U.S. Dist. LEXIS 143, 2021 WL 22828, * (E.D. Pa. Jan. 4, 2021) (dismissing a “regarded-as” claim under the ADA alleging that the plaintiff was terminated based on his employer’s perception that he had been exposed to COVID-19 because, even if the allegation were true, a mere exposure to COVID-19 is not an “impairment”).

10 Weaving v. City of Hillsborough, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting and adopting 29 C.F.R. § 1630.2(j)(1)(ii)), cert. denied, 574 U.S. 1191 (2015).

11 But cf. Parker, supra.

12 EEOC Guidance, Question D.2 (4/9/20).

13 See Peeples v. Clinical Support Options, Inc., 2020 U.S. Dist. LEXIS 169167, 2020 WL 5542719, (D. Mass. Sept. 16, 2020) (employer ordered to let plaintiff work remotely where he was likely to succeed on the merits of his claim that the defendant employer failed to engage in an interactive dialogue or justify that his physical presence at work was required).

14 EEOC Guidance, Question A.7 (6/17/20).

15 CDC has been most active in recommending best practices for businesses and employers in responding to the pandemic, see https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. As of the writing of this article, OSHA has issued limited bulletins and guidance documents.

16 EEOC Guidance, Question G.2 (4/17/20).

17 EEOC Guidance, Question K.5 (12/16/20).

18 EEOC Guidance, Question K.6 (12/16/20).

19 See Littler Mendelson’s employer survey published February 9, 2021. https://www.littler.com/publication-press/press/most-employers-unlikelymandate-covid-19-vaccination-littler-survey-finds 20 Honolulu Civil Beat, “Zippy’s Plans to Pay Employees to Get Vaccinated,” by Brittany Lyte (Feb. 23, 2021) https://www.civilbeat.org/2021/02/zippys-plans-to-offer-incentives-foremployees-to-get-vaccinated/.

Christopher J. Cole, a graduate of UCLA and UC Hastings College of the Law, is a partner at Marr Jones & Wang. He has practiced labor and employment law in Hawaii, including employment litigation, since 1992.

Ethics and Social Media:

by Lennes N. Omuro Social media has had a profound impact on our society and is an important part of the everyday life of many people around the world. The legal profession, especially the practice of litigation, has not been immune to the transformative effects of social media. Just as litigators discovered years ago that e-mails can provide vital evidence for a case, litigators are increasingly aware of the substantial impact that access to and use of social media can have on their cases today.

The use of social media, however, is not without risks. Hawaii attorneys are still bound by the Hawaii’s Rules of Professional Conduct (“HRPC”) when using social media in their practice and failure to abide by the Rules can result in serious adverse consequences. One area that attorneys should consider carefully before exploring is the accessing of information posted on social media that is not normally accessible to all internet users.

First, however, what is a lawyer’s obligation to be able to use social media?

HRPC, Rule 1.1 addresses a lawyer’s duty of competence as follows: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and 16 April 2021

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preparation reasonably necessary for the representation.

Will You Be My Friend?

The rule is identical to ABA Model Rule 1.1. In 2012, Comment 8 to the Model Rule was modified to provide that “a lawyer should keep abreast of changes in the law and its practice, including the benefit and risks associated with relevant technology.” Relying on their state versions of Model Rule 1.1 and Comment 8, ethical opinions have been issued in other states indicating that lawyers have a general duty to be aware of social media as a potential source of information and to be competent to obtain and make use of the information in litigation1 or that lawyers must have an understanding of how social media and social networking websites function and be able to advise clients about issues that may arise from their use of social media and social networking sites.2” Hawaii has not adopted Comment 8 to Model Rule 1.1. This does not necessarily mean, however, that Hawaii attorneys may simply ignore the use of social media. When proposing the 2012 amendment to Rule 1.1, Comment 8, the ABA Commission on Ethics remarked that the proposed amendment does not impose new obligations on lawyers and was instead intended

as a reminder to lawyers that they should remain aware of technology as part of the general duty to remain competent.3 In addition, HRPC, Rule 1.1 Comment 5 provides, in part, that competence of a particular matter includes “use of methods and procedures meeting the standards of competent practitioners,” and Comment 6 states that “to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.”

An argument may, therefore, be made that lawyers should be competent, or at least have access to the assistance of others in their firm who have competence in the function and use of social media.

Because social media users often publish huge amounts of information online, social media can be a very valuable source of information. Indeed, the openness of persons using social media can be very surprising and at times even shocking. Moreover, a review of relevant literature suggests that courts have so far, generally and not surprisingly, rejected the notion that information that social media users have made available to the public are somehow subject to a reasonable expectation of privacy or are otherwise privileged.4 Courts in other jurisdictions have even held that a privilege does not exist even if the social media user restricts access to posted material to a limited group of friends or followers.5 This does not mean, however, that there are no ethical considerations at issue, particularly when a lawyer attempts to obtain restricted information posted on a social media site by methods other than those available under the formal discovery process. The use of social media in investigations would be subject to the HRPC including those rules related to truthfulness in statements made to others and communications to persons represented by counsel.

In particular, HRPC, Rule 4.1(a) provides that “in the course of representing a client a lawyer shall not knowingly make a false statement of material fact to a third person.” HRPC, Rule 4.2 provides that “in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without the consent of the other lawyer or unless authorized by law or court

order. HRPC Rule 4.2 applies to communications with any person or entity regardless of whether they are a party to the formal proceeding as long as that person or entity is represented by counsel concerning the matters related to the communication.6 Accordingly, the authorities generally agree that a lawyer should not engage in deception to gain access to information on a social media site. It appears rather clear that a lawyer should not use a false name to “friend” someone to gain access to that person’s site if that person is represented by counsel.

In other situations, however, the authorities do not necessarily agree on what constitutes deceptive conduct that would violate the ethical rules i.e., the situation where a lawyer wants to “friend” someone who is not represented by counsel to obtain information for possible use at trial.

Some authorities indicate that this is acceptable and not deceptive as long as the lawyer uses his or her real name, and there is no need for the lawyer to disclose his or her purpose.7 Other authorities, however, have firmly taken the position that there should be some disclosure of the lawyer’s role and purpose in order to make the “friend request” not deceptive.8 As reasoned by the New Hampshire Bar Association Ethics Committee, “if a lawyer sends a social media request in-name-only with knowledge that the witness may not recognize the name, the lawyer has engaged in deceitful conduct” and that “omitting from the request information about the lawyer’s involvement in the disputed or litigated matter creates an implication that the person making the request is disinterested” which would be a “false statement of material fact” in violation of the ethical rules.9 Given the uncertain state of the law, lawyers may want to proceed with caution when attempting to obtain information subject to limited access on social media sites by methods outside of those established under the normal discovery rules.

Lawyers should also keep in mind their responsibilities regarding nonlawyer assistants under HRPC, Rule 5.3 including the responsibility for ensuring that persons under the lawyer’s supervision conduct themselves in a manner compatible with the professional obligations of the lawyer.

Lawyers, therefore, cannot have paralegals,

secretaries, private investigators, or other persons supervised or managed by the lawyer engage in any investigation of social media that the lawyer could not engage in herself or himself.

——————— 1

New Hampshire Opinion No. 2012-13/05 (June 20, 2013).

2 West Virginia Opinion 2015-2 (Sept. 18, 2015).

3 Commission on Ethics 20/20, Report to the House of Delegates, ABA Resolution 105A: Technology and Confidentiality.

4 See e.g., Moreno v. Hartford Sentinel, 172 Cal. App. 4th 1125 (Cal. Ct. App. 2009) (use of a posting on myspace.com that was available to anyone with internet access was not an invasion of privacy); see also, Colorado Opinion 127 (Sept. 2015) (a lawyer “may always view the public portion of a person’s social media profile and any public posts”).

5 See e.g., Nucci v. Target, 162 So. 3d 146 (Fla. Ct. App. 2015) (photographs posted on Facebook by plaintiff in a personal injury lawsuit were not privileged or protected by a right of privacy regardless of any privacy settings the user may have established) citing inter alia, Patterson v. Turner Constr. Co., 931 N.Y.S. 2d 311, 312 (N.Y. App. 2011).

6 HRPC, Rule 4.2, Comment 3.

7 New York City Bar Comm. on Prof. Ethics, Formal Op. 2010-2 (2010) (this approach is permissible as long as the lawyer does not do things such as create a “fraudulent profile that falsely portrays the lawyer or agent as a long-lost classmate, a prospective employer or friend of a friend”); Oregon Opinion 2013-189 (Feb. 2013) (“lawyer may request access to non-public information if the person is not represented by counsel in that matter and no actual representation of disinterest is made by the lawyer”).

8 See e.g. Phila. Bar Assoc., Prof. Guidance Comm., Op. 2009-02 (lawyer may not friend a witness without revealing that the lawyer is seeking information that could be used to impeach the witness; if the witness knew the true purpose, she may not have allowed access); San Diego Op. 2011-2 (May 24, 2011) (lawyer’s duty not to deceive prohibits lawyer from making a friend request of unrepresented witnesses without disclosing the purpose of the request); Massachusetts Op. 2014-5 (May 8, 2014) (it is not permissible for a lawyer to send a friend request to an unrepresented party without disclosing that the requester is the lawyer for the adversary party).

9 New Hampshire Opinion 2012-13/05.

Lennes N. Omuro is a partner at Goodsill Anderson Quinn & Stifel and a member of its litigation section. He has also served as his firm’s Professional Responsibility Committee Chairperson and as in-firm Counsel.

[Ed. Note: This article was previously published in the January 2017 issue of the Hawaii Bar Journal.]

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CAS E NOTES Supreme Court Civil Procedure Cambridge Mgmt., Inc. v. Jadan, No. SCWC-17-0000176, February 16, 2021, (Recktenwald, C.J.). The Hawaii State Judiciary has committed that all litigants who cannot meaningfully access court proceedings based on their English proficiency will be given language access assistance, including the services of a court-appointed interpreter. The courtroom setting is often intimidating; its language, technical. In light of this reality, it is the court’s responsibility to determine whether a litigant can speak and understand English such that they are able to meaningfully access justice in this extraordinary setting – not simply whether their English is passable, adequate, or otherwise “good enough” to meet ordinary day-to-day demands. In the instant case, the Judiciary’s language access commitment was not kept. Specifically, the district court failed to determine whether defendant Nicole Jadan’s participation in the court proceedings would be meaningful absent language assistance when it resolved her repeated requests for an interpreter. The Hawaii Supreme Court vacated the judgment with respect to Jadan’s counterclaim for damages and remanded to the district court, which must give due consideration to her request for the services of an interpreter, for further proceedings. The Hawaii Supreme Court also clarified that the meaningful access mandate extended to all proceedings in Hawaii state courts, including appeal.

Yoshimura v. Kaneshiro, SCAP-190000854, February 1, 2021 (McKenna, J.). This appeal stemmed from the circuit court dismissal, for lack of jurisdiction, of Tracy Yoshimura’s (“Yoshimura”) petition to impeach Honolulu City Prosecutor Keith Kaneshiro (“Kaneshiro”) under section 12-203 of the Revised Charter of the City and County of Honolulu (2017) (“section 12-203 of the Revised Char-

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Appeal Pointer In multi-claim or multi-party circuit court cases, a final judgment is not appealable unless it identifies the claims and the parties for which the judgment is entered and unless it resolves, on its face, all claims against all parties. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai`i 115, 119-20, 869 P.2d 1334, 1338-39 (1994). ter”). In December 2018, Yoshimura created an online petition to impeach Kaneshiro after Kaneshiro received a target letter from the United States Department of Justice. Yoshimura asserted his petition was supported by over 800 electronic signatures collected from an online platform called Change.org. In April 2019, Yoshimura filed a first amended petition purported to be electronically signed by over 500 signatories on a different online platform, DocuSign. Between February and April 2019, Yoshimura sought the legal opinion of the City Clerk as to what information was necessary to certify that the signatories of his online petition(s) were duly registered voters of the City and County of Honolulu. In April 2019, Deputy Corporation Counsel Moana Yost (“Yost”) set forth the City’s position in a letter stating that impeachment petition(s) must contain the full legible names, handwritten (not electronic) signatures, and residence addresses of at least 500 signatories. Kaneshiro then moved to dismiss the petition, arguing that electronic signatures did not satisfy the requirements for a petition to impeach the city prosecutor under section 12-203 of the Revised Charter.

Yoshimura then moved for leave to amend his petition to file a second amended impeachment petition, adding the City Clerk as a defendant, and seeking a declaratory order that the City must accept electronic signatures under Hawaii Revised Statutes Chapter 489E (2008), Hawaii’s Uniform Electronic Transactions Act (“UETA”). Kaneshiro filed an

opposition to Yoshimura’s motion for leave to amend, which he combined with a cross-motion to strike the motion for leave to amend. The circuit court denied the motion for reconsideration, concluding Yoshimura raised evidence and arguments that could have been raised earlier in the litigation, and that the motion lacked merit in any event. The circuit court then entered its final judgment. On appeal, Yoshimura argued that electronic signatures were valid under the law. He also argued that, to the extent Haw. Rev. Stat. § 489E-18 (2008) provided a government agency discretion to reject electronic signatures, the government agency must first promulgate rules under HAPA, or otherwise set forth a written policy, detailing the circumstances under which electronic signatures may be rejected.

Two months after oral argument in this case, Steven Alm was elected as City Prosecutor. He was sworn into office in January 2021. Kaneshiro thereafter moved to dismiss this appeal as moot. As this case fell under the “public interest” exception to the mootness doctrine, the Hawaii Supreme Court denied the motion to dismiss and proceeded to address the merits of this appeal. The Hawaii Supreme Court held that Hawaii’s UETA does not apply to the petitions for impeachment in this case, principally because application of the UETA required the consent of the parties to transact governmental business electronically.

Criminal State v. Lee, No. SCWC-16-0000797, February 9, 2021, (Nakayama, J., with Wilson, J. dissenting). Petitioner/Defendant-Appellee Joshua Lee (“Lee”) appealed the judgment of the ICA vacating the circuit court order granting Lee’s motion to suppress evidence obtained in a search of Lee’s bedroom. On certiorari, Lee raised a single point of error and argued that the ICA erred in applying an emergency aid exception, which Lee contended was inconsistent with article I, section 7 of the Hawaii Constitution. The

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Hawaii Supreme Court decided that even if the police officers unlawfully searched Lee’s bedroom, however, the circuit court erred in suppressing all evidence obtained by the State. The evidence did not constitute suppressible “fruit of the poisonous tree.” The State did not gain any benefit from the police officers’ entry into Lee’s bedroom. Moreover, Lee’s actions following the officers’ entry into Lee’s bedroom severed any causal link between the officers’ purportedly unlawful entry and the evidence recovered.

Wilson, J. dissented, stating that the Majority created a new suicide exception to the constitutional right to privacy in a home or bedroom. All people of the State of Hawaii (“the State”) are now at risk of unconsented, warrantless entry into their homes or bedrooms by police who have been told that the person residing in the home or the bedroom might be suicidal. The decision of the Majority significantly reduced the protection afforded to Hawaii’s law abiding citizens by the constitutions of the State of Hawaii and the United States to be free from unconsented invasion of the home and bedroom by government agents.

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State v. Hewitt, No. CAAP-160000460, February 16, 2021, (Hiraoka, J.). After a bench trial, Defendant-Appellant Cyrina Hewitt (“Hewitt”) was convicted of operating a vehicle under the influence of an intoxicant (“OVUII”) in violation of Haw. Rev. Stat. § 291E61(a)(1),1 and driving without a license in violation of Haw. Rev. Stat. § 286-102(b).

Hewitt appealed from the Judgment entered by the district court. She contended that the district court erred by (1) denying her motion to suppress her statement to a police officer that she was driving and failing to determine the voluntariness of her statement; (2) denying her motion to suppress the result of her warrantless blood draw; and (3) admitting her blood test result into evidence. The ICA held that the district court did not err by denying Hewitt’s motion to suppress her

statement, but did err by overruling Hewitt’s Haw. Rev. Stat. § 621-26 trial objection and failing to conduct a hearing on the voluntariness of her statement.

In addition, the district court erred by denying Hewitt’s motion to suppress her blood test result because the State did not develop the record to justify the warrantless blood draw.

Family JD v. PD, CAAP No. 20-0000023, February 10, 2021, (Nakasone, J.). Respondent-Appellant PD, self-represented, appealed from the December 17, 2019 Judgment of the Family Court that granted an Order for Protection to Petitioner-Appellee JD and the couple’s child, RD. In domestic abuse protective order cases involving a minor, Haw. Rev. Stat. Chapter 586 requires that the Department of Human Services (“DHS”) provide the family court, the petitioner, and the respondent with “a written report on the disposition of the referral” before issuance of the protective order.

Haw. Rev. Stat. § 586-10.5 (2018). The DHS reports provided to the family court and the parties in this case did not contain DHS’s “disposition” of the referral. Accordingly, the ICA vacated the Order for Protection and remanded this case to the family court with instructions.

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Municipal Flores v. Ballard, No. CAAP-190000841, January 27, 2021, (Hiraoka, J.). With one exception, each county in Hawaii has its own police department.

This case presented the issue of whether the police chief of one county can utilize police officers from another county to enforce the law in the chief ’s county.

The ICA held: (1) the temporary assignment of police officers from one county to another is authorized by Haw. Rev. Stat. § 78-27 (2012); and (2) Haw. Rev. Stat. Chapter 52D and the Hawaii County Charter authorized the chief of the Hawaii County Police Department to appoint and supervise police officers from other counties temporarily assigned to Hawaii County.

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21

H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in January: • Approved the Executive Committee’s recommendation to deposit funds from the Raymond James investment account into a new Merrill Lynch investment account that will be kept separate from other HSBA monies; • Voted to approve the amendment to the banking resolution that replaces the name of the former Director of Operations with the name of the new Director of Operations; • Approved the Executive Committee’s recommendation to fill the Oahu Director vacancy on the HSBA Board with the next highest vote-getter, Tristan Andres, in the most recent election; • Approved the Executive Committee’s recommendation to ratify President Levi Hookano’s remaining 2021 committee chair appointments: Awards - Craig DeCosta and Kristin Izumi-Nitao Diversity Equality and the Law - Trisha Nakamura and Clarissa Malinao Judicial Administration - Vladimir Devens (co-chair with previously-appointed Justice Simeon Acoba (ret.))

Nominating - Calvin Young Professional Responsibility and Risk Management - Hayley Cheng, David Hayakawa and Judge Jill Otake • Approved the Executive Committee’s recommendation to ratify President Levi Hookano’s appointment of the following individuals as 2021 HSBA Nominating Committee members: Calvin Young (chair), Trejur Bordenave, Judge Darien

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HAWAII BAR JOURNAL

Nagata, Shannon Sheldon, Judge Michael Soong, Jesse Souki, Elmira Tsang, and Mark Valencia; • Approved the Executive Committee’s recommendation to ratify President Levi Hookano’s appointment of the following individuals as 2021 HSBA representatives to the Supreme Court Nominating Committee: Sidney Ayabe, Sherry Broder, Carol Muranaka, and Stephanie Rezents; • Approved the Executive Committee’s recommendation to approve the creation of the Ad Hoc Committee to Study LSP Opt-In on Dues Renewal; • Determined that the Judiciary’s operating and CIP budget requests, and the legislative bill that authorizes the Chief Justice to temporarily fill ICA vacancies, meet the Keller analysis (i.e., is germane to the purposes of the unified bar and would generally be supported by HSBA members); and • Voted to support the top priorities of the Judiciary’s legislative budget request for FY 2021/2022, as identified by Chief Justice Mark Recktenwald below, when the bills are scheduled for hearings at the Legislature: SB383/HB185: Essential staffing for court/administrative operations and building repair and maintenance SB388/HB189: Allows the Chief Justice to designate substitute ICA judges

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Sections and Related Entities of the Hawaii State Bar Association The editorial board of the Hawaii Bar Journal inquired with the various Sections and related entities of the Hawaii Bar Association as to its membership. A few Sections and the Pacific Islander Legal Association provided the following responses.

HSBA ENVIRONMENT, ENERGY AND RESOURCES SECTION Who is the head of the Section, and what is Section’s contact information?

As of January 2021, the section is led by Chair David Morris, who can be reached at dmorris@legalhawaii.com. We also have a Section mailbox at eershsba@gmail.com.

How many members do you have?

We have approximately 150 members.

What does the Section or group focus on? What is its mission and goals?

The Section’s mission and goals are to: (i) provide engaging educational and continuing legal education programs, (ii) provide meaningful opportunities to network and build community within the bar, (iii) foster interest in environmental, energy and natural resources law careers among law students and young lawyers, and (iv) serve as a resource on environmental, energy, and natural resources law. We also act as course planner for the environmental law seminar at the annual HSBA Hawaii Bar Convention.

How much are the annual dues?

The annual dues of the Section are $10.

Does the Section have regular meetings or gatherings?

If so, what is the schedule?

The Section does not have a fixed schedule but typically hosts a meeting or event every other month. The schedule is flexible and may depend on speaker availability, opportunities for coordinating with other sections or outside groups, relevant developments in the law, and other factors. These events are coordinated by the Section’s board members, with input from Section members, and may include educational programs, volunteering events, or social gatherings. Recently, we have transitioned some educational events to videoconference format, which has enabled greater participation from neighbor island section members. The Section also hosts a full-day seminar at the annual HSBA Hawaii Bar Convention in the Fall and an end-of-year pau hana.

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Where are the meetings or gatherings normally held?

The educational programs are typically held at the HSBA conference room or via videoconference, but volunteer events, social gatherings, and other events are held at other locations.

In 2019, the Section held a volunteer event at the Malama Maunalua Community Huki where members helped remove invasive algae from Maunalua Bay on Oahu. The Section also hosted an educational tour of the Honuaula cultural preserve on Maui. Recent educational programs have year addressed topics such as wind energy and endangered species, Hawaii’s new EIS rules, energy law in transition, updates from legislators and county council members.

Does the Section or group offer CLE courses and, if please so, give some recent examples?

Yes. The Section offers CLE credit for some of its educational programs, which are typically lunchtime events, which provide one hour of CLE credit. The section also coordinates a full day program at the HSBA’s annual Bar Convention, which offers up to 6 hours of CLE credit. The Section has been actively working toward expanding opportunities for our members to obtain CLE credit for Section programs. At this year’s EERS Legislative Update, which was a virtual event using Zoom, county officials discussed recently-enacted and proposed environmental legislation at the county level. Last year, the Legislative Update featured Representatives and Senators from the Hawaii State Legislature. The environmental law track at the 2020 HSBA Bar Convention featured panels on the topics of climate change litigation, workplace health and safety during the pandemic, electrification of transportation, Clean Water Act permitting and the Maui case, PFAS contaminants, and ethics.

Why should an attorney join the Section or group?

The Section is a dynamic and diverse group of lawyers practicing or interested in the fields of environmental, energy, and natural resources law. Membership in the Section provides meaningful opportunities for professional development and engagement through educational programs, social events, volunteering, and networking.

INTERNATIONAL LAW SECTION Who is the head of the Section, and what is Section’s contact information?

The current Chair of the International Law Section (“ILS”) is: Na Lan HSBA - International Law Section c/o Na Lan Damon Key Leong Kupchak Hastert

1003 Bishop St., Ste. 1600 Honolulu, HI 96813 Tel: (808) 526-3617 Email: nl@hawaiilawyer.com How many members do you have?

89 as of July 2020.

What does the Section focus on?

What is its mission and goals?

The Section focuses on: (1) Promoting collaboration and exchange events among legal professionals from other jurisdictions with our members; (2) Developing and maintaining friendship/network among our members and with other attorneys whose law practices involve cross-border transactions or disputes and international clients; (3) Offering a platform for our members to share or access connection and resources within our Section and from other organizations with similar goals and mission; and (4) Supporting communication between HSBA members and UH law school faculty and students with international interests.

How much are the annual dues, if any? $15 Does the Section have regular meetings or gatherings? If so, what is the schedule?

Pre-COVID-19, yes. ILS has at least two membership meetings at the beginning and by the end of each year.

In between, ILS usually organizes and collaborates with other sister organizations or foreign bar associations on exchange events with delegates from Japan, China, South Korea, and Inter-Pacific Bar Association.

Where are the meetings or gatherings normally held?

Meetings are normally held in conference rooms of the members’ law firms. Gatherings are normally held in restaurants or other vendors with appropriate space for pau hana or holiday parties.

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Does the Section offer CLE courses and, if please so, give some recent examples?

The Section has not offered CLE courses yet, but the Section offers seminars or lunchtime presentations on topics of interest to its members. The Section had its first membership lunch meeting this year on February 21, 2020 with a speaker from Washington D.C. on a discussion regarding the United States and China trade and business outlook.

Why should an attorney join the Section?

If you are interested in serving international clients, working with foreign legal professionals, or building friendships with local and foreign attorneys sharing the same passion and interest, you should join the International Law Section.

Is there any further information you would like to provide to the members of the bar?

The Section plans on exploring options of honorary and student ILS membership to expand its support network, seek input and comments from the Section members by online survey(s), and is looking for assistance from a passionate law student who is willing to support the Section on new projects to improve the quality of its services to members.

PACIFIC ISLANDER LEGAL ASSOCIATION Who is the head of the Pacific Islander Legal Association (“PILA”), and what is Association’s contact information?

President: Darcia Forester Vice-President: Saisamoa Grey Price Treasurer: Wilson Unga Secretary: Nina Ki The Association’s email address is: PacificIslanderLegalAssn@gmail.com How many members do you have?

During our first year, we had 15 members. We are now in our second year, and we have 23 members. We hope to expand our membership as we participate in more events with the HSBA and the Pacific Islander legal community.

What does PILA focus on? What is its mission and goals?

PILA is a voluntary professional organization of attorneys, judges, law students, and legal professionals. Its mission is to promote unity, cooperation, fellowship, education, and the exchange of ideas among its members for the advancement of the Pacific Islander communities.

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How much are the annual dues, if any? $35 per year for attorneys $20 for non-lawyers (paralegals, etc.)

Free for law students (The Association has an active Student Chapter at the William S. Richardson School of Law.) Does PILA have regular meetings or gatherings?

If so, what is the schedule?

The Association has several meetings per year that are announced via email communication to its members. The schedule is based on the availability of its Board of Directors and meeting space.

Where are the meetings or gatherings normally held?

The Association has meetings at the HSBA meeting rooms or through online platforms like Zoom.

Does PILA offer CLE courses and, if please so, give some recent examples?

We do not offer CLE courses.

Why should an attorney join PILA? The organization started in 2018 to encourage and unite attorneys and legal professionals interested in strengthening communication and collaboration among Pacific Islander attorneys and members of the profession interested in providing legal services to the Pacific Island communities in the state.

There was a need to begin building networks and connections between the Pacific Islander attorneys who practice law in the state. There was also a need to support and encourage the Pacific Islander students to consider and seek a career in law.

There is strength in numbers and, by joining together, the Association would have a stronger voice. The membership reflects the diversity and strength of Pacific Islanders in the legal profession in Hawaii.

Is there any further information you would like to provide to the members of the bar?

Because PILA is new, it is currently focusing on building a relationship with Pacific Islander law students through its Student Chapter at the William S. Richardson School of Law and organizing events that support the law students. PILA’s future plans include developing and promoting connections with Pacific Islander college students and high school students who may be considering law school or a legal career. PILA wants to create forums for Pacific Islander attorneys in the state to engage with and inspire Pacific Islander students at all levels to seek higher education and to consider a career in law.

2021 Suspensions On March 4, 2021 the listed attorneys were administratively suspended for failure to complete the 2021 attorney licensing registration process required by the Hawaii Supreme Court, which includes payment of dues and fees for the Disciplinary Board, the Lawyers’ Fund for Client Protection and the Attorney & Judges Assistance Program.

Kimberly J Adams Glenn P.K. Akiona James M. Anderson Brooks Leavitt Bancroft Christopher John Briggs James P. Brumbaugh Christopher Dale Burk Sharmini K. Cassady Michael Phillip Cayaban Gaye Lynne Chun

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Susan Biniszkiewicz Collins Sean Michael Coughlin Robin Guy Cowan Matthew David Dickerson Kathleen M. Douglas Charles N. Evans Mary Morgan Evans Camille Hansen Fleming Kurt Stephen Fritz David Andrew Galazin M. Victor Geminiani John Clark Gibson Curtis L. Greenway John Michael Haushalter Charles Michael Heaukulani Mark S. Holmes Deborah L. Kim Brandon James Kimura Annie Marie Kopplin Eric T. Krening Meredith Krieger Mary G.F. Kuchlenz

Laurie A. Kuribayashi Lucy Marie Lane Herbert B.K. Lau Allen H.Y. Leong Michael Laurence Levine Steven L. Louie Sara Louisa Lowther David K. Marquardson John Edward McDonald Cynthia Kay McNeff Lee A. Olsen Sandra Loren Park Denise Marie Pennick Devon Ishii Peterson Kurt A. Reinecke Randel A. Scharf Dale H. Schofield Chandra Ke Hsin Shih Carrie Leigh Simmering Virgilio Celino Solis David Kirk Stapp James E. Starnes

Desarack Teso Everett Walton Rodney W. Williams Warren Koji Yamamoto Dennis K. Yamase Francis H. Yano

COURT BRIEFS Justice McKenna Wins ABA 2021 Stonewall Award

Supreme Court Associate Justice Sabrina S. McKenna was recently named one of three recipients of the American Bar Association’s 2021 Stonewall Award. The award recognizes “lawyers, members of the judiciary and legal academics who have effected real change to remove barriers on the basis of sexual orientation, gender identity or gender expression and have championed diversity for the LGBT community, both within the legal profession and impacting the greater human universe.”

The award was named after the 1969 Greenwich Village Stonewall Inn riot, which was a watershed moment in the fight for LGBT civil and human rights equality.

Justice McKenna, along with Justice Martin J. Jenkins of the California Supreme Court and U.S. Sen. Tammy Baldwin of Wisconsin, received her award during a virtual celebration on February 20.

Mediator, Arbitrator,

Receiver, and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. Successful in high stakes mediations for clients of most of Hawaii’s major law firms.

• 43 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, Arbitration, 2018, and Mediation, 2021.

• Mr. Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies.

• Mr. Hiatt has also served as a court appointed Receiver in complex commercial matters.

For ADR work, please contact

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 937-4179. Resume and references at www.hiattlaw.com.

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O FF THE R EC ORD Damon Key Leong Kupchak Hastert hired Nicholas Ernst as an Associate in the firm’s Litigation, Appellate, and Mediation practice groups and Cheyne Yonemori as an Associate in the firm’s Business & Commercial Law, Trusts & Estates, Condominium & Community Association Law, and Insurance Coverage Litigation practice groups.

Ernst earned his law degree from the University of Hawaii, William S. Richardson School of Law, where he studied in the Evening Part Time program while working full-time at Kamehameha Schools as a teacher in the school’s Speech Department. Yonemori received his law degree also from the William S. Richardson School of Law. Natalie Moreland was sworn in as an Assistant U.S. Attorney for the District of Hawai‘i in December. Before joining the U.S. Attorney’s Office, she clerked for Judge Richard R. Clifton of the U.S. Court of Appeals for the Ninth Circuit and Chief Justice Mark E. Recktenwald of the Hawai‘i Supreme Court.

Kelden Waltjen was sworn in as Hawai‘i County prosecuting attorney.

He is a former deputy prosecuting attorney in the office he will lead.

Diana Kim recently joined the Legal Aid Society of Hawai‘i as Director of External Relations.

Miyoko T. Pettit-Toledo was named Executive Director and attorney for Maximum Legal Services Corporation (MaxCorp), a Hawai‘i non-profit corporation. She oversees the nonprofit’s trust and estate administration operations and leads MaxCorp’s team of attorneys, paralegals/legal assistants, social workers, and bookkeepers. Prior to joining MaxCorp, she was a litigation associate attorney at McCorriston Miller Mukai MacKinnon.

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The Hawai‘i Community Foundation named Todd Apo as Vice President of Partnerships and Public Affairs. He most recently was Senior Vice President of Community Development for the Howard Hughes Corporation. Prior to that, he was Director of Public Affairs for Disney Parks and Resorts in Hawai‘i.

Allan Y. Okubo received a 2020 Pookela Award from the Hawaii State Theatre Council as Featured Actor in a Play for his role as Mr. Snow in “Cinderella Waltz” at The Actors’ Group, which play was a dark comedy based around the normal storyline of Cinderella, with a twist.

The Hawai‘i County Bar Association honored Ted H.S. Hong at a virtual tribute event in November 2020 that was a joint event with Ku’ikahi Mediation Center.

At its 2020 Annual Recognition and Holiday Gathering via Zoom in December 2020, The Mediation Center of the Pacific honored the following individuals: George Clifford, Mediator of the Year; Kendra Epstein, Apprentice Mediator; Chuck Buckla, Above and Beyond; Judge Joseph Cardoza (ret.), Lawyer as Problem Solver; Sidney Ayabe, Special Board Recognition; and James Koshiba, Peacemaker.

News for “Off the Record” Please send in information about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K. Muranaka at <carol.k.muranaka@gmail.com> or Cynthia M. Johiro at <Cynthia.M.Johiro@hawaii.gov>.

Articles Wanted If you are interested in writing either a short or long article of general interest to members of the bar, please send

your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov; or Carol K. Muranaka at carol.k.muranaka@gmail.com; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is approximately 500 to 1,500 words.

The longer law-review type articles are published in a special issue. The Cades Foundation has been gracious and generous in funding this special issue.

These articles exceed 7,000 words.

The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

2021 Hawaii Access to Justice Conference Save the date: Friday, June 25, 2021. The Hawaii Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission, will be an all-day event. Please attend to be part of an exciting, provocative discussion about seeking justice for the underserved, including opportunities for audience participation.

The keynote speaker will be Honorable Nancy Gertner (Ret.) who is on the faculty of the Harvard Law School. Opening remarks will be given by Hawaii Supreme Court Chief Justice Mark Recktenwald and Chair of the Commission, former Second Circuit Judge Joseph Cardoza.

Six continuing legal education (“CLE”) credits are being sought for this event.

ATTORNEY WANTED ASSOCIATE ATTORNEY (Civil Litigation) Established downtown law firm is seeking a litigation associate attorney. 3-6 years civil litigation experience preferred; Admission to Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Please submit resume and writing samples in confidence to: Recruiting Committee/HR Case Lombardi & Pettit, A Law Corporation 737 Bishop Street, Suite 2600 Honolulu, HI 96813 Email: recruitingdirector@caselombardi.com EXCELLENT OPPORTUNITY for family law attorney with substantial experience to join established family law department in large firm, with mentoring and case referral benefits.

Join as counsel or on partner track. Firm provides all administrative services. Please submit your resume to ptomar@ awlaw.com O’CONNOR PLAYDON GUBEN & INOUYE LLP, is looking for an Associate Attorney in litigation. One year of litigation experience is desired. Must be licensed to practice in Hawaii. Salary is commensurate with experience. Benefits include: vacation/sick leave, medical, dental, vision, 401(k), parking, life and LTD insurance. gmp@opgilaw.com.

RARE OPENING to become a neutral expert in UIPA and Sunshine Law issues for an equal opportunity employer. Work/life balance; generous benefits, incl. pension. Need excellent writing, analytical, & communication skills. $60,000+/yr. Email oip@hawaii.gov with resume, 3 references & writing sample.

WE ARE A TEAM of talented lawyers at a midsized law firm specializing in civil and commercial litigation with an emphasis on maritime law. If you are a Hawai‘i-licensed attorney with 2-3 years of litigation experience who can produce high-quality work product and meet an 1,800 billable target, our firm can offer you a six-figure salary, flexibility with scheduling, mentorship opportunities, and a chance to contribute to the firm’s ongoing strategic planning and implementation (i.e.,

a chance to shape your workplace). The ideal candidate will possess a strong work ethic, excellent research and writing skills, curiosity and a growth mindset, and a collegial attitude. Please send a cover letter, resume, and writing sample to cwl@cwlfirm.com.

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150.

“Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

LEGAL CONSULTING LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case.

Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com

OFFICE SPACE COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts.

John H. Meserve, CRS. (808) 450-5555 jhmeserve@gmail.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure.

AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. www.lanceluke.com 808-422-2132 PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559 REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059.

OFFICE SPACE in the Historic Hawaii Times Bldg 928 Nu’uanu Ave. 290 sq ft furnished, Available now. Call or email 808-534-1040 jslawsky@1stallied.com AVAILABLE -Immediately. Located in Waterfront Plaza, Executive Suite. Two window offices (1 or both). 2 secretary carrels, storage closet available too. Includes use of conference room, kitchen, reception area.

Shared law/CPA office. Ample parking. Call Scott @ 295-9577.

AVAILABLE – June 1, 2021. Assume lease of ocean view office in a shared class A law office suite in Bishop Square. $800 per month.

Includes kitchen and referral work opportunities. rose@attorneysforfreedom.com.

LIKE NEW Law Office space available to share with kitchenette and professional conference room , one minute walk from Ala Moana shopping center. WiFi included 24/7 access to office Call:(808)256-5858

RECRUITING / TEMP STAFFING HiEmployment is Hawaii's best choice for finding top legal talent. Professional recruiting and temp staffing services available.

695-3974. email: info@hi-employment.com

REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for

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