Form I-9 (Rev. 02/02/09) reflects 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.

GAO’s report focused on three objectives: (1) identifying the number and characteristics of employer worksites in the VPP and factors that have influenced program growth; (2) determining the extent to which OSHA ensures that only qualified worksites participate in the VPP; and (3) assessing the adequacy of OSHA’s efforts to monitor performance and evaluate the effectiveness of the VPP.   

First, the GAO report found that the number of employer worksites in the program has more than doubled from 1,039 worksites in 2003 to 2,174 in 2008. The report highlighted two factors that influenced the growth of the program: (1) OSHA’s emphasis on expanding the program by establishing targets for the number of new VPP worksites that each region must approve each year; and (2) outreach efforts by employers seeking to join the program and VPP participants approaching other employers.  

Second, GAO found that OSHA’s internal controls do not ensure that only qualified worksites participate in the VPP. In particular, the report cited the lack of a policy requiring regions to document their response to fatalities and serious injuries at VPP sites. GAO found that no documentation existed in connection with the assessment of the safety and health systems of 30 VPP sites where 32 fatalities occurred from January 2003 to August 2008 and whether these sites should remain in the program. It also observed that OSHA lacks sufficient oversight to ensure that its regions comply with VPP policies for conducting on-site reviews and verifying VPP worksites’ injury and illness rates. 

Third, the GAO report found that OSHA has not adequately assessed the performance or effectiveness of the VPP. In particular, it noted that OSHA has not developed performance goals or measures to assess the program. In addition, while OSHA conducted a study to evaluate the program’s effectiveness, GAO considered the study flawed because the participation rate was low and the data reported by participants was not validated.

GAO made three recommendations to OSHA to improve its VPP: (1) develop a documentation policy regarding information on follow-up actions taken by OSHA’s regional offices in response to fatalities and serious injuries at VPP sites; (2) establish internal controls that ensure consistent compliance by the regions with OSHA’s VPP policies for conducting on-site reviews and monitoring injury and illness rates so that only qualified worksites participate in the program; and (3) establish a system for monitoring the performance of the VPP by developing specific performance goals and measures for the program. 

Prior to the report’s release, OSHA had submitted a response to a draft report it received from GAO. In its response, OSHA stated it shares the concerns addressed by the first two recommendations and is committed to develop better documentation requirements and strengthen internal controls to ensure consistent compliance with VPP policies and procedures. With respect to the third recommendation, OSHA stated that injury and illness rates must be a meaningful part of any program evaluation, but OSHA will continue to identify and refine other VPP performance measures.

Rep. Frank (D-MA) introduced similar legislation in the 110th Congress, but the gender identity language was removed to facilitate passage. That bill passed the House on November 7, 2007 by a vote of 235-184, but did not make it out of the Senate. As a result of the removal of the gender identity language, Rep. Frank introduced a stand-alone bill prohibiting employment discrimination on the basis of an individual’s actual or perceived gender identity, but that bill did not make it out of committee.

Status: H.R.2981 was introduced by Rep. Frank (D-MA) on June 19, 2009 and referred to the committees on Education and Labor; Administration; Oversight and Government Reform; and Judiciary.

The Commission announced that it will submit the Notice of Proposed Rulemaking (NPRM) to other federal agencies and the OMB for review and coordination, and then, following that process, publish it in the Federal Register for notice and comment.

Vice Chair Griffin presided over the meeting and explained that the Commission, through its proposed regulations implementing the Act, seeks to reverse past court decisions which narrowly interpreted the ADA and limited the scope of the Act’s protections.

Peggy Mastroianni, Associate Legal Counsel, gave an overview of the work done to fashion the rule. Mastroianni emphasized two driving components in the development of the rule: that the definition of disability should “be construed in favor of broad coverage” and “should not demand extensive analysis.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, summarized the proposed changes to EEOC’s existing regulations. The proposed changes attempt to broaden the existing list of examples to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes.” Kuczynski also noted the Commission believed greater specificity in the regulations would increase court deference to the regulations.  The proposed changes include additional examples to the list of “major life activities,” (adding “reaching,” “sitting” and “interacting with others”), as well as additions to the list of “major bodily functions” (adding functions of the “hemic,” “lymphatic” and “musculoskeletal” systems). 

Kuczynski also addressed proposed changes to the language requiring that a disability “substantially limit” a major life activity. The proposed changes lower the current standards for coverage through five rules of construction. Under these rules, (1) courts should focus on determining whether discrimination actually occurred, rather than on proving the existence of a disability; (2) an individual need not demonstrate limitedness in “activities of central importance to daily life”; (3) an impairment that substantially limits one life activity need not limit others to be “substantially limiting”; (4) the comparison of an individual’s limits to those of most people in the general population may often be made through common-sense analogy, without citing to scientific analysis; and (5) impairments lasting less than six months may still be considered “substantially limiting.”

Also included within the “substantially limits” standard are episodic disabilities or disabilities in remission, so long as those disabilities, when active, would “substantially limit” major life activities. 

The NPRM identifies a number of impairments that will “consistently meet the definition of ‘disability’ because they “will obviously be substantially limiting.” This list includes some obvious choices, like blindness, deafness, and missing limbs, but also includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Kuczynski stressed that the express inclusion of certain conditions should never undermine the “individualized assessment that is the hallmark” of this process. Moreover, the NPRM also identifies a number of impairments that may be substantially limiting depending on individual circumstances, such as asthma, high blood pressure, carpal tunnel syndrome, and panic disorder.  

Griffin touted the proposed changes as a good tool for moving back toward Congress’ intention of eliminating discrimination. She added that, following the implementation of the new rules, “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.” Acting Chairman Ishimaru agreed, stating that the implementation of the new rules will hopefully shift away from the further narrowing of the definitions critical to the Act.

Commissioner Barker dissented, because she viewed the proposed changes as exceeding EEOC’s authority under the Act. While she agreed the ADA needed amending, she believed the existing ADA Amendments Act embodied the extent of the changes Congress intended to make, and that as non-legislators, EEOC is “confined to making those changes…that correctly reflect Congressional intent,” and that they do not have the power to insert or remove concepts of their own volition without authority. She further asserted that Congress had developed the Act after much bipartisan negotiation and compromise, arriving at a solution that represented the “careful balancing of interests.” Commissioner Barker said Congress did not intend “to throw out the ADA and start afresh.”

Status: Sen. Jim DeMint (R-S.C.) introduced the bill on June 10, 2009, and it was referred to the Senate Health, Education, Labor and Pension Committee.  A similar bill was introduced on the same day in the House by Rep. Steve King (R-IA), which was referred to the House Committee on Education and Labor. 

The debarment would apply for a period of at least five years. The bill applies to contracts for an amount greater than $500,000 and includes a provision for a waiver of the debarment requirement on a case-by-case basis if the Secretary finds that the debarment would jeopardize national security.

Status: H.R. 2825 was introduced by Rep. Carol Shea-Porter (D-NH) on June 11, 2009 and referred to the Committee on Armed Services.

Earp, a Republican member of the Commission, had served as the Commission’s Chair for more than two years during the Bush administration until January 23, 2009, when President Obama named Democrat Stuart Ishimaru as acting Chair.  Earp had previously served as Commission Vice Chair from 2003 until August 2006, and was serving a term as EEOC Commissioner that would have ended July 1, 2010. 

Additionally, there may be another vacancy in the near future because President Obama has nominated Acting Vice Chair Christine Griffin to be deputy director of the Office of Personnel Management, and her term ends in July 2009 in any event.  Assuming Griffin is confirmed for this position, the only remaining EEOC members will be Acting Chair Ishimaru and Commissioner Constance Barker, a Republican.  The Commission’s fifth seat has been empty since August 2008 when Republican former Vice Chair Leslie Silverman’s term expired.

Status: Rep. Carolyn Maloney (D-NY) introduced the bill on June 11, 2009, and it was referred to the House Committees on Education and Labor, Ways and Means, and Energy and Commerce that same day.

Status: Rep. Steve King (R-IA) introduced the bill on June 10, 2009, and it was referred to the House Committee on Education and Labor that same day.

The bill as passed by the House would further establish certain rights of veterans absent from employment for a military service-connected disability. These employees would be: 1) entitled to be retained by the employer and 2) entitled to the seniority and other rights and benefits determined by seniority the veteran had on the date of the treatment for the disability, plus the additional seniority and rights and benefits the veteran would have attained had he or she remained continuously employed. In addition, these employees would be deemed to be on furlough or a leave of absence while receiving treatment for a military service-connected disability, and therefore would be entitled to other non-seniority rights and benefits generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or a leave of absence.

Employees would not be entitled to such non-seniority rights and benefits if the employee provides written notice to the employer of having no intent to return to employment following medical treatment.  Further, employers would not be required to retain a covered veteran if: 1) circumstances have so changed to make retention impossible or unreasonable, 2) retention would pose an undue hardship on the employer, or 3) the employment in question is for a brief, nonrecurrent period and there is no reasonable expectation that it will continue indefinitely or for a significant period.

The House version of the bill also would permit any veteran absent from work due to treatment for a military service-connected disability to use any accrued vacation, annual, medical, or similar leave with pay to cover such time away from work, although an employer cannot require a veteran to do so.

Status: Rep. Doggett (D-TX) introduced the Wounded Veteran Job Security Act on January 13, 2009 and it was referred to the House Committee on Veterans’ Affairs. The bill was reported with amendments to the House Committee on Veterans’ Affairs and placed on the Union Calendar on May 19, 2009. The bill was passed by the House in a voice vote on June 8, 2009. The bill will now move to the Senate.