by Burton J. Fishman

Sears recently reached a $6.2 million settlement with the Equal Employment Opportunity Commission (EEOC) regarding Americans with Disabilities Act (ADA) violations stemming from the company’s alleged refusal to return injured workers to the job. This is the largest ADA settlement in a single lawsuit in EEOC history. More aggressive enforcement has been promised by the Obama administration across the civil rights/employment discrimination front; this appears to be a product of that new policy.

At the root of the EEOC’s allegations was an “inflexible” workers’ compensation leave policy that had the effect of terminating employees rather than seeking and/or arriving at a reasonable accommodation that would yield a return to work. Although only one employee filed a charge, the EEOC claims that pretrial discovery revealed that hundreds of other employees who had taken workers’ comp leave were also terminated without regard for a return to work or an extended leave under the Americans with Disabilities Act.

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The Equal Employment Opportunity Commission’s (EEOC) Notice of Proposed Rulemaking (NPRM) — which would revise its Americans with Disabilities Act (ADA) regulations to comply with the ADA Amendments Act (ADAAA) — is now available at www.HRhero.com/eeoc/eeoc_proposedregulations.pdf.

The NPRM interprets the requirements of the ADAAA, which Congress passed in late 2008 to make it easier for employees and applicants who allege disability discrimination to establish that they are disabled as defined by the Americans with Disabilities Act. The NPRM will be published in the Federal Register this week, after which the EEOC will accept the public’s comments on the proposal for a period of 60 days. It’s unclear at this time when final regulations will be issued, but they are unlikely to come before the end of the year.

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The Equal Employment Opportunity Commission (EEOC) has voted to approve a Notice of Proposed Rulemaking (NPRM) that would revise its Americans with Disabilities Act (ADA) regulations to comply with the ADA Amendments Act (ADAAA), which was passed late last year and went into effect January 1, 2009. The ADAAA and the proposed rule make it easier for employees and applicants who allege disability discrimination to establish that they are disabled and therefore entitled to the ADA’s protections.

In a huge departure from the approach taken in the old regulations, the NPRM lists specific types of physical and mental impairments that will “consistently” qualify as disabilities under the ADA, such as deafness, blindness, missing limbs, cancer, cerebral palsy, epilepsy, HIV/AIDS, and severe mental disorders such as bipolar disorder or schizophrenia. In addition, the EEOC emphasizes that: read more…

After many months of efforts to craft a health care reform bill that would garner at least some bipartisan support, Sen. Max Baucus unveiled today, September 16, 2009,  proposed legislation that has no Republican support as of yet, even from the three Republicans who were part of his efforts to craft a bipartisan bill.

As chairman of the Senate Finance Committee, Baucus has been charged with the unenviable task of trying to come up with a proposal that can pass not only in that committee but also in the full Senate. His efforts to do so have resulted in a middle-ground proposal that is unlikely to please Democrats — many of whom favor a more liberal approach that includes a public option — or Republicans, who are concerned about the costs of any proposed legislation as well as social issues such as whether coverage would be provided for abortions and illegal immigrants.

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On Tuesday, September 15, 2009,  the Ohio House of Representatives passed a bill to add sexual orientation and gender identity to the list of protected classes under Chapter 4112, Ohio’s antidiscrimination statute, and R.C. 4111.17, which prohibits wage discrimination. The bill, H.B. 176, was introduced into the Ohio House in May and originally added “gender identity and expression” to the list of protected classes. An amendment to the bill eliminated gender expression as part of the definition of the protected class, narrowing the protection for gender identity to “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.”

Interestingly, the bill limits the statutes’ coverage for the two new classes — sexual orientation and gender identity — only to government employers and employers with 15 or more employees (as opposed to the four or more employees required for other protected classes). In addition, the bill provides an exception for “religious association[s], corporation[s], or societ[ies] . . . not organized for private profit, or any institution[s] organized for educational purposes . . . operated, supervised, or controlled by such [religious organizations]” to discriminate on the basis of sexual orientation or gender identity and expression except when the organization is engaged in a secular business activity unrelated to the religious or educational purpose for which it is organized.

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Senator Arlen Specter, the Republican-turned-Democrat from Pennsylvania, announced on Tuesday, September 15, 2009, at the AFL-CIO convention that he expects Congress to pass a version of the Employee Free Choice Act (EFCA) before the end of the year. He referenced a compromise of the controversial bill that he has been working on and added, “We have pounded out an employees’ choice bill which will meet labor’s objectives.” Specter added that he is confident the bill will receive the 60 votes in the Senate required to end a filibuster, even though he predicts no Republicans will vote for the bill’s passage.

After his speech, Specter reportedly revealed details of the possible compromise bill. According to him, the new version of EFCA won’t include the contentious card-check provision, which would have made it much easier for employees to form unions by allowing a majority of employees to unionize by signing card-check petitions. Under this provision, employers no longer would have been able to dispute the card-check process through a secret-ballot election if a majority of employees signed the petitions.

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Since Congress returned from its recess this week, all eyes and attention have returned to health care reform. A framework for a potential bipartisan health care reform bill was made public this week. And President Barack Obama addressed a joint session of Congress, outlining his plan for health care reform, though Republicans generally remain wary of the potential costs and scope of government control.

Audio Conference: Health Care Reform Is Here: Impact and Answers for Employers offered April 22, May 6 and May 20

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The Occupational Safety and Health Administration (OSHA) announced on September 4 that it will perform comprehensive safety inspections at nearly 4,000 high-hazard workplaces. These inspections are part of OSHA’s Site-Specific Targeting 2009 (SST-09) program, which helps direct enforcement resources to the types of workplaces that have the highest rate of injuries and illnesses.

OSHA will choose the workplaces to inspect based on its 2008 Data Initiative Survey of 80,000 employers, which provided data on workplace injuries and illnesses. The employers surveyed had 40 or more employees and were involved in industries with historically high injury and illness rates.

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It’s time for employers to examine their health benefits to see if they’re in compliance with the Mental Health Parity and Addiction Act of 2008, which takes effect on January 1, 2010.

The law applies to most employers with more than 50 employees. It requires covered employers that offer a health insurance plan with mental health coverage to provide the mental health benefits at the same level as medical and surgical benefits, including deductibles, copayments, out-of-pocket expenses, inpatient stays, and outpatient visits. The law ends limits on mental health coverage, such as 30-day hospital stays and 35 visits a year to a mental health professional, if a company’s plan doesn’t have similar limits for physical ailments. Also, if a plan offers out-of-network coverage for physical illnesses, beginning January 1, 2010 it will have to offer similar out-of-network coverage for mental health care.

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