Bloomberg News

Disability-Rights Advocates Worry Politics Delays Workplace Rule

April 25, 2012

Advocates for employees with disabilities said new guidelines on discrimination in the workplace from the U.S. Equal Employment Commission are being delayed by political opposition from business.

The agency abruptly deleted the proposal today from the agenda for a meeting, a week after business groups led by the U.S. Chamber of Commerce pressed the Obama administration to block the guidelines.

Employers are required to provide “reasonable accommodation” for people with disabilities, such as extended unpaid leave for necessary treatment. The Chamber said it was concerned that the guidelines, which weren’t released, would make it harder for employers to deal with requests for leave.

“It just does worry me that political opposition from one side, sort of in the middle of the process, generates a political response of delay,” Brian East, senior attorney with Austin, Texas-based Disability Rights Texas, said in an interview. “It reminds me of the early days of agency regulation and how we went years without regulations and clear enforceable mandates.”

Commissioners Victoria Lipnic and Chai Feldblum, both appointed by President Barack Obama, declined to specify a reason for the delay, though said they plan to deal with the guidelines in the coming weeks. The two commissioners said they are aware that the business community appealed to the Obama administration.

“We all always listen to outside voices,” Lipnic said.

Chamber Protest

The Chamber, in an April 19 letter to Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs, said it has “significant concerns that the guidance under consideration by the EEOC will not interpret the ADA in the balanced manner which Congress directed.” The letter was co-signed by the Alexandria, Virginia-based Society for Human Resource Management and the HR Policy Association based in Washington.

“Additional time will allow the full commission to engage with these important questions and to develop the most effective, credible, the most workable guidance because that is what people with disabilities in this country deserve and that’s what employers in this country deserve,” Feldblum said at the meeting.

At a conference in March, Feldblum said her preference would be for the commission to update its guidance on reasonable accommodation, followed later by publishing a separate document on granting leave.

‘Reasonable Accommodation’

When drafting the Americans with Disabilities Act, Congress declined to define “reasonable accommodation,” Feldblum said at the conference. The law’s history suggests that “unpaid leave” can be a reasonable accommodation for an individual with disabilities, Feldblum said at the time.

When Congress passed the Family and Medical Leave Act in 1993, it didn’t resolve differences with the disabilities law, Feldblum said. That created uncertainty for employers about what happens after a disabled individual exhausts the maximum 12 weeks of family leave and whatever additional leave an employer might provide under the disabilities law, she said.

The Chamber said it’s concerned the commission might use the disabilities law to require employers to give more than 12 weeks of family leave. Issues surrounding implementation of the disabilities law were discussed at a June 8 commission meeting.

“I know that as of yesterday afternoon, they were still furiously editing the draft,” Michael Eastman, the Chamber’s executive director for labor law policy, said in an e-mail. “I suspect they ran out of time to finish it.”

The agency in recent weeks also delayed guidance to how to assure that disabled people have access to swimming pools that could require the installation of lifts, East said.

“This is the delay of some guidance to enforce a law that was passed in 1990,” East said. “It is troubling and a lot of what I heard in response to that was inaccurate.”

To contact the reporters on this story: Jim Efstathiou Jr. in New York at jefstathiou@bloomberg.net; William McQuillen in Washington at bmcquillen@bloomberg.net

To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net


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