On September 17, 2008, the House passed the ADA Amendments Act (ADAAA) (S. 3406) by voice vote.  The White House has indicated that President Bush will sign the bill.

Passed in the Senate by unanimous consent on September 11, 2008, this legislation would overturn a number of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA.  The legislation purports to return the ADA to its original scope as intended by Congress in 1990 by prohibiting courts from considering “mitigating measures” such as medication, prosthetics, and assistive technology in determining whether an individual is “disabled” under the ADA.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses.

A person is considered disabled under the ADA if they suffer from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Although the new legislation retains the previously-debated “substantially limits” language, the bill directs the Equal Employment Opportunity Commission to change the current regulations defining “substantially limits” as “significantly restricted” because such regulations are “inconsistent with congressional intent, by expressing too high a standard.”

A statement released by the White House after the House vote, indicated that the president “looks forward to signing the ADAAA into law.” If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

Core Provisions: This untitled legislation purportedly intends to “protect the civil rights of victims of gender-motivated violence . . . by creating employer liability for negligent conduct that results in an individual’s committing a gender-motivated crime of violence against another individual on premises controlled by the employer.”  Where an employer’s negligent conduct results in a gender-motivated violent crime on the employer’s premises, this legislation would impose employer liability for compensatory and punitive damages and injunctive and declaratory relief.  The legislation directs the Equal Employment Opportunity Commission to create and provide materials to employers regarding personnel policies and safety standards to assist employers in avoiding liability under the bill.

Status: Rep. Maloney (D-NY) introduced H.R. 6927 on September 17, 2008, and it was referred to the House Committee on Education and Labor and the House Judiciary Committee.

Core Provisions: This legislation would amend the provisions of the Employee Retirement Income Security Act, Public Health Service Act, and Internal Revenue Code permitting group health plans to establish limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.  The new language would clarify that such limitations must be explicit and clear and disclosed to the plan sponsor in advance of the point of sale to the plan.  The plan sponsor and issuer of the coverage would be required to make available to participants and beneficiaries prior to their enrollment and upon their enrollment, a description of such limitations and restrictions in an easily understandable form.

Status: Rep. Burgess (R-TX ) introduced the Health Insurance Source of Injury Clarification Act on September 16, 2008, and it was referred to the House Committees on Energy and Commerce, Education and Labor, and Ways and Means.  On September 17, 2008, the House Energy and Commerce Committee held a mark-up session and ordered H.R. 6908 to be reported by a voice vote.

On September 17, 2008, the House Education and Labor Subcommittee on Workforce Protections held a hearing entitled “Secret Rule: Impact of the Department of Labor’s Work Health Risk Assessment Proposal.”  The hearing examined a proposal from the Department of Labor’s Office of Policy to change and codify the risk assessment process, by which agencies evaluate if exposure to a toxic material poses a significant risk.  Agency decisions about whether to regulate a toxic material take into account risk assessments, as well as whether proposed regulations are technologically and economically feasible. 

This proposed rule has been referred to as the “secret rule” because it was not included in the Department of Labor’s semiannual regulatory agenda, was not originally published in the Federal Register, and the documents or advice that formed the basis of the proposed rule have not been disclosed.

Leon Sequeira, Assistant U.S. Labor Secretary for Policy, testified that the proposed rule merely codifies existing risk assessment best practices into a single easy-to-reference regulation.  The proposed rule would institute two new requirements: (1) agencies developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical would be required to issue an Advanced Notice of Proposed Rulemaking (ANPRM) soliciting input including scientific studies and data, and (2) agencies would be required to post online documents relied upon in developing the risk assessment no later than fourteen days after the conclusion of the relevant rulemaking step that utilized those documents.

Randel Johnson, Vice President of the U.S. Chamber of Commerce, also spoke favorably about the proposed rule.  Johnson pointed out that because courts give risk assessments of federal agencies significant deference, it is important that the initial risk assessment is accurate.  Johnson stated that requiring an ANPRM would not necessarily slow down the regulatory process, but it would allow agencies to gather all relevant data and perfect the risk assessment as early as possible in the process.

Dr. Celeste Monforton of The George Washington University School of Public Health and Margaret “Peg” Seminario, Director of Occupational Health and Safety at AFL-CIO, both testified against the proposed rule.  Monforton characterized the current procedures for issuing occupational health-protective rules as “paralyzed,” and argued that the proposed rule would make it even more difficult and time-consuming to issue such protections.  Seminario argued that the current administration has consistently refused to set any new occupational health standards, but is now rushing to lock in place these new procedures to make it more difficult for the next administration to protect workers from known health risks. Seminario also pointed out that the proposed procedures would apply to rules currently in the regulatory process, none of which have had ANPRMs, but which would now be required.  Seminario also emphasized that even though the proposed rule would require the online publication of documents relied upon in formulating rules, the Department of Labor has yet to publish any of the documents it relied upon in formulating the so-called “secret rule.”

Subcommittee Chair Woolsey (D-CA), Rep. Payne (D-NJ), and Rep. Hare (D-IL) all asked the panel questions indicating their disapproval of the proposed rule.  In her concluding remarks, Chairwoman Woolsey announced her continued commitment to protecting the health of American workers by making sure that “any ill-conceived proposal will not see the light of day - particularly this one.”

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued a new directive to provide guidance to employers when filling out their Employer Information Report, or EEO-1.  Certain private employers and federal government contractors are required to file an EEO-1 report annually, which details its employees’ job categories, race, ethnicity, and gender.

In November 2005, the EEOC, in conjunction with the OFCCP, finalized a revised EEO-1 report form, which contains different descriptions of race, ethnicity, and job categories.  For instance, while the old EEO-1 plan provides a race and ethnicity category for “Hispanic,” the revised form includes a category for “Hispanic or Latino.”  The OFCCP’s new directive is an attempt to reconcile the revised EEO-1 report and the now-outdated OFCCP regulations that have not yet been changed to reflect the new EEO-1 categories.

The new directive clarifies that federal contractors will not be cited for noncompliance for using either the old or new EEO-1 race and ethnicity categories when preparing their affirmative action plans and provides further guidance on the use of the new categories in specific affirmative action plan requirements such as workforce, job group, utilization and other analyses.

The filing deadline for the EEO-1 report is September 30, 2008.

Core Provisions: This legislation would provide for additional emergency unemployment compensation by amending the Supplemental Appropriations Act to extend benefits for jobless workers who have exhausted their benefits.  The bill would augment individuals’ benefit amounts by the lesser of 50 percent of the regular compensation payable to the individual during the benefit year under state law, or 13 times the individual’s average weekly benefit amount for the benefit year. The legislation’s phase-out provisions provide for no augmentation of benefits after March 31, 2009.

Status: Rep. McDermott (D-WA) introduced H.R. 6867 on September 10, 2008, and it was referred to the House Committee on Ways and Means.

Core Provisions: This legislation would amend the Fair Labor Standards Act to increase the penalties for child labor violations. The penalty for a violation would be raised from $11,000 to $50,000 per employee, and from $50,000 to $100,000 for each violation that causes the death or serious injury of an employee under the age of 18.

Status: Rep. Braley (D-IA) introduced H.R. 6861 on September 10, 2008, and it was referred to the House Committee on Education and Labor.

On September 11, 2008, by unanimous consent, the Senate passed compromise legislation (S.3406) that would amend the Americans with Disabilities Act (”ADA”). Introduced in response to a series of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA, the legislation purports to return the ADA to its original scope as intended by Congress in 1990.

S.3406 requires courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. In rejecting Supreme Court precedent, the bill specifically prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled. However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses. 

A sticking point previously holding up S.3406’s passage has involved Congress’s attempt to define of the term “substantially limits” under the ADA. Coverage under the ADA turns in large part on whether an individual is “substantially limited” in the ability to perform “major life activities.” Recent court decisions have taken a narrow view of “substantially limits” and Senate Democrats had sought to widen the ADA’s coverage by broadly defining the term. Language in H.R. 3195, a similar bill which passed the House of Representatives on June 25, defined the term to mean “materially restricts.” Republicans and business groups objected to that definition, warning H.R.3195’s language threatened to bring a bevy of relatively minor impairments under the ADA’s umbrella. Accordingly, following a bipartisan compromise, the final version of S.3406 omitted the “materially restricts” language, instead providing boarder coverage under the ADA through a preliminary section on Congressional findings and purposes.

The House of Representatives is expected to take up the bill once again in upcoming weeks. If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

OSHA recently released a July 14, 2008 interpretation letter regarding its “Determination of work-relatedness” standard, 29 C.F.R. § 1904.5. The interpretation letter considers whether injuries to employees on an employer’s parking lot are considered “work-related” injuries under § 1904.5(b)(2)(vii).

This standard helps employers determine which injuries and illnesses they should record and report to OSHA. In particular, § 1904.5(a) requires an employer to “consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” In addition, § 1904.5(b)(2) provides a list of injuries or illness occurring in the workplace not considered “work-related,” thus not recordable.

Under § 1904.5(b)(2)(vii), an injury or illness “caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work” is not a “work-related” injury that is recordable.

In its interpretation letter, OSHA clarified that three factors must exist for an injury or illness to qualify for this exception:  (1) it must occur during an employee’s commute; (2) it must occur in the employer’s parking lot or access road; and (3) it must result from a motor vehicle accident. OSHA concluded that because the injuries did not involve a motor vehicle accident, the third requirement for § 1904.5(b)(2)(vii) does not exist. Therefore, employers must record these accidents on their establishment logs.

On August 29, 2008, the DOL’s Office of the Assistant Secretary for Policy issued a notice of proposed rulemaking (NPRM) that changes the methods used to measure workplace exposure to toxic substances and hazardous chemicals. Under this proposed rule, agencies must seek out and receive all relevant data before proposing a health standard. 

In particular, the proposed rule makes two significant changes to the existing regulations:

• When developing a health standard regulating occupational exposure to a toxic substance or hazardous chemical, agencies must issue an Advance Notice of Proposed Rulemaking (ANPRM) soliciting input on studies, scientific information, data describing the frequency, intensity and duration of exposure of workers in affected industries and occupations, key default factors and assumptions, and other relevant information.
• Agencies must post electronically all documents relevant to a rulemaking addressing occupational exposure to toxic substances and hazardous chemicals no later than fourteen days after the conclusion of the relevant rulemaking step that relied upon or utilized those documents. The rulemaking steps include, but are not limited to, publishing an ANPRM, concluding the Small Business Regulatory Fairness Act (SBREFA) process, publishing of the NPRM, concluding any public hearing, and publishing a final rule.

The Office for the Assistant Secretary for Policy has also asked for public comments in connection with this proposed rule. The comment period will remain open until September 29, 2008. Comments may be submitted in two ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/ or 2) mail or hand deliver to the Office of the Assistant Secretary for Policy, 200 Constitution Ave., NW, S-2312, N.W., Washington, D.C., 20210, Attention: Risk Assessment Policy.