Workplace Regulation: Federal Disability Policies Top 2013 Agenda

January 04, 2013

The OFCCP promises to issue its final disability affirmative action rules this spring while the EEOC continues to move against large employers for not expanding their leave policies (even the most generous ones) to accommodate employees with disabilities.

April 2013 Target Date for 503 Rules  After a prolonged delay that clearly sought to avoid the election campaign, the Obama administration finally issued its Fall 2012 Regulatory Agenda in late December.  Among other noteworthy items, the agenda lists the OFCCP’s final rules governing disability affirmative action under Section 503 of the Rehabilitation Act as set to be issued in April.  The proposed rules received strong criticism from the business community and components of it even received some complaints from within the disability community.  Nevertheless, the agency continues to ignore our invitation to engage in a dialogue to achieve progress in the hiring of individuals with disabilities in a more workable and economically feasible manner.  Nor has the agency given any indication that the final rules will take our criticisms into account.  The agency is also targeting April for the issuance of final regulations governing veterans’ affirmative action, which have raised a number of similar concerns.

EEOC Cracks Down on Leave Policies  The EEOC is expected to continue to expansively interpret and enforce the Americans with Disabilities Act, which Commissioner Chai Feldblum characterizes as “an inadvertent leave law.”  The agency takes the view that a qualified employee with a disability may be entitled to leave as a “reasonable accommodation” even after exhausting Family and Medical Leave Act (FMLA) or employer-provided leave, however generous the employer’s policy may be.  To illustrate, the EEOC recently announced a $4.85 million settlement with Interstate Distributor Co., which was accused of violating the ADA by automatically terminating injured or ill employees once they exhausted maximum leave instead of allowing them to return to work with restrictions on the work they would have to perform. 

EEOC and States Target Background Checks  At a time when the Newtown tragedy and similar incidents have heightened concerns about workplace security, the EEOC can be expected to continue its counterintuitive assault on employment background checks.  Contending that such checks have a disparate impact on black and Hispanic males, the agency issued a controversial “enforcement guidance” last spring that continues to draw fire from employers and victims’ advocacy groups.  At a recent Civil Rights Commission hearing on the guidelines, G4S Security Solutions USA Inc. (formerly Wackenhut) described how the company’s rejection of an applicant for a security officer position because of two prior theft convictions drew an EEOC investigation of the company’s nationwide hiring practices.  Meanwhile, the agency is also cracking down on credit checks, as at least eight states have passed laws banning their use in employment decisions.

FLSA “Right to Know” Rules on Hold
  The long-anticipated “right to know” regulation, which would require employers to provide written explanations to FLSA exempt employees and independent contractors as to why they are not being paid overtime, continues to be listed in the regulatory agenda as a “long-term action.”  It is not clear at this point if or when it will be proposed.  Even without the regulation, the disconnect between the Depression-era law and today’s digital workplace will continue to grow, and FLSA litigation can be expected to increase, with the number of lawsuits in each of the past five reported years more than tripling compared to those at the turn of the century.