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A Look At Federal Agency Regulatory Plans and EEOC Coordination of Disability Charges

Published right before Thanksgiving, the 2013 fall federal agency regulatory plans help to illustrate what proposed and final rules are on the agenda for the coming months.  The regulatory plans and fall agendas highlight agency priorities and goals and give a preview of future developments in federal employment law.

At the Department of Labor, the agency in general is focused on its “Plan/Prevent/Protect” initiative, which is designed to lessen the agency’s enforcement and inspection burden by issuing rules designed to put the responsibility for ensuring workplace compliance on the employer or regulated entity (such as a union).  Among the DOL’s subsidiary agencies, OSHA is working on publishing final rules that will establish standardized procedures for filing whistleblower complaints under a number of federal statutes, as well as updating workplace infectious disease standards.  The Office of Labor Management Standards will probably publish some version of its controversial “persuader rule,” which would greatly expand the types of union-related activities that trigger employer reporting requirements.  The Office of Federal Contract Compliance programs will continue to update its revised affirmative action requirements, as we covered here earlier, and will likely provide updated sex discrimination guidelines.  Finally, the Wage and Hour Division will be updating its definition of “spouse” to conform to the Supreme Court’s decision in U.S. v. Windsor.

At the EEOC, the agency plans to issue an updated rule increasing the monetary penalty for violations of the agency’s notice posting requirements under Title VII and the ADA.  The NLRB may move forward with a rule that will significantly change pre and post-union election procedures.  An earlier version of the rule was stayed after litigation found it invalid.  Lastly, the Department of Health and Human Services is going to be publishing rules implementing the Affordable Care Act’s non-discrimination provisions, which provide protections against discrimination in health programs and by activities of covered entities.

On a similar note, the EEOC recently released a plan that illustrates how it proposes to coordinate with the Department of Justice and the Department of Labor regarding handling complaints filed under the ADA and the Rehabilitation Act.  The regulation will help to clarify how agencies with responsibility for enforcing the ADA have to refer charges and complaints.  The rule will also help to coordinate complaint procedures followed by the EEOC, the DOJ, and the DOL.  The same article also notes that the EEOC recently filed a complaint against a Michigan eyewear retailer that denied an employee the use of her service dog while at work.  Revised ADA regulations have narrowly defined what constitutes a service animal, and the EEOC is likely to aggressively enforce those requirement– even when the service animal is a miniature horse.