On September 30, 2009, OSHA published a proposed rule to modify its existing Hazard Communication Standard (HCS). The proposed revisions represent OSHA’s effort to conform the HCS with the United Nations’ globally harmonized system of classification and labeling. OSHA expects that this proposed rule will improve the quality and consistency of information regarding chemical hazards, and their associated protective measures, for employers and employees.     

In its current form, the HCS requires chemical manufactures and importers to examine whether or not the chemicals they produce or import are hazardous. If a chemical is determined to be hazardous, the manufacturer or importer must develop and provide a container label and a safety data sheet to inform employers and employees of the chemical’s hazards and any protective measures associated with the hazard. Employers with hazardous chemicals in the workplace must implement a hazard communication program, which includes hazard identification, labeling, safety data sheets, a written hazard communication program, and employee training.   

Under the proposed rule, employers must provide more detailed and specific classifications for chemical hazards, including the type of hazard present and the severity of the hazard. The proposed rule also requires specific formats for safety data sheets, standardized signal words, pictograms, hazard statements, and precautionary statements for container labels, and employee training on the proposed safety data sheet and container labeling requirements. Because the globally harmonized system does not include a written hazard communication program, OSHA does not propose to make any changes to the existing written hazard communication program requirements.

Comments should be sent to OSHA by December 29, 2009.  Comments may be submitted to OSHA electronically at http://www.regulations.gov/; by fax to the OSHA Docket Office at (202) 693-1648; or by mail to the OSHA Docket Office, Docket No. OSHA-H022k-2006-0062, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW, Washington, DC 20210.

Core Provisions: This legislation would amend the Internal Revenue Code to make wages and benefits paid to unauthorized aliens nondeductible for federal taxation purposes. There would be a six-year limitation on assessments under the new provision. The legislation includes a safe harbor provision for employers who comply with the terms of the E-Verify program and obtain confirmation of the identity and employment eligibility of the employee at issue. The legislation would also require the Secretary of the Treasury to work with the Commissioner of the Social Security Administration and the Secretary of the Department of Homeland Security by disclosing the taxpayer identity information of employers whose deductions for wages for ineligible workers were denied, and the taxpayer identity information of the corresponding ineligible workers.

Status: Rep. King (R-IA) introduced H.R. 3580 on September 16, 2009, and it was referred to the House Ways and Means, Judiciary, and Education and Labor Committees.  Rep. King introduced a similar bill in the 110th Congress, but that bill failed to make it out of committee.

Core Provisions: This legislation would amend the Internal Revenue Code to provide employers an income tax credit for employing members of the Ready Reserve and National Guard and veterans recently separated from the Armed Forces. The credit allowed would amount to 15 percent of the qualified wages paid or incurred during the calendar year. Only the first $10,000 of wages for each employee per year would be taken into account.

Status: Rep. Alexander (R-LA) introduced H.R. 3620 on September 22, 2009, and it was referred to the House Committee on Ways and Means.

On September 23, 2009, the EEOC’s Notice of Proposed Rulemaking (NPRM) regarding the ADA Amendments Act of 2008 (the Act) was published in the Federal Register. Passed almost one year ago and effective since January 1, 2009, the Act explicitly invalidated certain EEOC regulations and several Supreme Court decisions interpreting the ADA. The EEOC’s NPRM contains proposed regulations and interpretive guidance in response to the Act.

The Act expands the definition of “disability” under the ADA to be construed more broadly than in the past, in an effort to make it easier for an individual to establish that he has a disability within the meaning of the ADA. According to the EEOC’s proposed regulations, the determination of whether an individual has a disability should not demand extensive analysis. Instead, the focus of an ADA case should be on whether discrimination occurred.

The proposed regulations broaden the scope of a “disability” in a number of ways. The proposed regulations expand the definition of “major life activities” to include “major bodily functions,” such as breathing, cell reproduction, and immune system function. They provide that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Additionally, the proposed regulations provide that mitigating measures other than ordinary eyeglasses or contact lenses should not be considered when assessing whether an individual has a “disability.” Finally, the proposed regulations revise the definition of “substantially limits” a major life activity and “regarded as” disabled in an effort to make it easier to satisfy the definition of “disability.” 

The proposed regulations were approved by 2-1 vote on September 16, 2009.  There will be a 60-day public comment period following the NPRM’s September 23, 2009 publication in the Federal Register.  Written comments should be submitted to EEOC via U.S. mail, facsimile, or electronically by November 26, 2009.

Core Provisions: The CARE Act would amend the Fair Labor Standards Act (”FLSA”) to strengthen the prohibitions against child labor.  Specifically, the Act would (1) narrow the exemption for children performing agricultural work; (2) increase civil penalties for child labor violations; (3) impose special criminal penalties for aggravated child labor violations; (4) require the Secretary of Labor to gather and analyze data on work-related injuries to children employed in agriculture; (5) impose additional employer reporting requirements for work-related injuries for employees who are minors; and (6) incorporate a pesticide-related worker protection standard.

Status: Rep. Roybal-Allard (D-CA) introduced the bill on September 15, 2009, and it was referred to the House Committee on Education and Labor that same day.  Rep. Roybal-Allard introduced similar legislation (H.R. 2674) in the 110th Congress, but that bill failed to make it out of committee.

On September 16, 2009, by a 2-1 vote, the Equal Employment Opportunity Commission (EEOC) approved a Notice of Proposed Rulemaking (NPRM) revising its regulations under the Americans with Disabilities Act (ADA). Necessitated by the ADA Amendments Act of 2008, the NPRM makes significant changes to how the term “disability” is defined, expanding the scope of persons considered disabled under the ADA. 

The ADA Amendments Act stated several Supreme Court decisions and certain EEOC regulations construed the definition of “disability” too narrowly, improperly precluding individuals with impairments that were episodic or in remission from being considered disabled. The NPRM emphasizes that the definition of disability - an impairment that poses a substantial limitation in a major life activity - must be construed broadly and should not require extensive analysis.

Acting EEOC Vice Chair Christine M. Griffin said, “Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken.  These regulations will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”

The NPRM carries a 60-day period for public comment. The comment period will officially commence upon publication of the NPRM in the Federal Register.

On September 15, 2009, President Obama nominated Chai R. Feldblum as a Commissioner on the Equal Employment Opportunity Commission. Feldblum, a Democrat, was nominated for a term expiring July 1, 2013. If confirmed, Feldblum would fill the slot left vacant by the expiration of Republican Leslie Silverman’s term in July 2008.

Feldblum played a leading role in drafting the Americans with Disabilities Act of 1990, as well as in passing the ADA Amendments Act of 2008. She has worked to advance flexibility in the workplace, founding Workplace Flexibility 2010, a campaign to support the research and development of a comprehensive national policy on workplace flexibility by 2010. Feldblum has long been an advocate for disability rights, lesbian, gay, bisexual and transgender rights, and AIDS-related issues. The White House describes her as a “leading expert” on the Employment Nondiscrimination Act.

Since 1991, Feldblum has been a Professor of Law at the Georgetown University Law Center.  There, she founded the Law Center’s Federal Legislation and Administrative Clinic, a program designed to encourage and train students to become effective legislative lawyers. Feldblum also served as legislative counsel to the ACLU’s AIDS project.

Beginning on September 8, 2009, all federal contractors will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause (73 FR 67704). In July, the Department of Homeland Security (DHS) announced the Administration’s support for the E-Verify program, stating that it will only award federal contracts to employers who use E-Verify to check employee work eligibility.

E-Verify is a free internet-based system administered by U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA), that compares information from an employee’s I-9 Form against federal government databases to verify employment eligibility. Under the final rule, all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, must verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985. Agencies must also amend, on a bilateral basis, any existing indefinite delivery/indefinite quantity contracts to include the clause for future orders if the remaining period of performance extends beyond March 8, 2010.

All affected federal contracts and subcontracts awarded, or solicitations issued, after September 8 will include a clause committing government contractors to use E-Verify. Companies awarded contracts with an E-Verify clause will be required to enroll in the program within 30 days from the award date. Contractors will then have 90 days after enrollment to initiate employee verification. E-Verify must be used to verify that all new hires, regardless of whether they work on federal contracts, and existing employees who work directly on these federal contracts are legally authorized to work in the U.S.

All employers, including non-federal contractors, may enroll in E-Verify at any time without waiting for the applicability date. Employers can register for E-Verify online at: https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES. USCIS provides further guidance on its website. Directions on how to use E-Verify are available in the USCIS E-Verify Quick Reference Guide.

The final rule, arising out of Executive Order 12989, was originally scheduled to take effect on January 15, 2009. The rule was initially postponed in January in response to a lawsuit filed by the U.S. Chamber of Commerce (Chamber of Commerce of the United States of America v. Chertoff, D. Md. No. 8:08-cv-3444) in the U.S. District Court for the District of Maryland challenging the legality of the rule. The federal government announced a fourth delay in implementing the E-Verify rule on June 2, 2009, postponing the expected rollout date to September 8, 2009. On August 25, 2009 the Maryland district court upheld the final rule requiring federal contractors to use E-Verify. U.S. Chamber of Commerce filed a notice of appeal on August 31. On September 1, the group filed a motion for emergency injunction to block implementation of the final rule on September 8 pending the appeal. The district court denied plaintiffs’ motion for emergency injunction on September 4.

On August 27, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that the Office of Management and Budget approved the use of Employment Eligibility Verification Form I-9 (Rev. 02/02/09) through August 31, 2012. USCIS has amended the form to reflect a new revision date of August 7, 2009.

Employers can either continue to use Form I-9 (Rev. 02/02/09) or use the newly revised Form I-9 (Rev. 08/07/09). Both versions reflect changes made to employment verification documentation requirements outlined in the interim final rule, published Dec. 17, 2008 in the Federal Register. The final rule took effect on April 3, 2009. Most significantly, the final rule precludes the use of expired employment verification documentation and other documents no longer issued by USCIS.