Equal employment opportunity for individuals with disabilities--EEOC. Final rule

On July 26, 1990, the Americans With Disabilities Act (ADA) was signed into law. Section 106 of the ADA requires that the Equal Employment Opportunity Commission (EEOC) issue substantive regulations implementing title I (Employment) within one year of the date of enactment of the Act. Pursuant to this mandate, the Commission is publishing a new part 1630 to its regulations to implement title I and sections 3(2), 3(3), 501, 503, 506(e), 508, 510, and 511 of the ADA as those sections pertain to employment. New part 1630 prohibits discrimination against qualified individuals with disabilities in all aspects of employment.     

EEOC guidance on psychiatric disabilities: many problems, few workable solutions

The EEOC recently issued "Enforcement Guidance" on psychiatric disabilities under the Americans with Disabilities Act. Although the Guidance provides clarification of a few issues involving mental disabilities under the ADA, in most respects the Guidance is problematic. For example, the Guidance suggests that the inability to get along with a supervisor or coworkers may constitute a disability under the ADA, that an employer may have to "accommodate" a disabled employee's misconduct, that an employer cannot require an employee to follow doctor's orders as a condition of employment, and that an employer may be obligated to modify work rules and procedures to accommodate a mentally disabled employee but is prohibited from explaining to coworkers why it is making such modifications. As the EEOC's Guidance exceeds or conflicts with the ADA in some respects and is largely unworkable in many respects, it remains to be seen how many courts will actually follow it.     

Employment discrimination: procedures for handling complaints--Equal Employment Opportunity Commission. Proposed rule

This proposed rule sets forth procedures for the handling of complaints of employment discrimination which are filed with Federal fund granting agencies under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and other provisions of Federal law which prohibit discrimination on grounds of race, color, religion, age, sex or national origin in programs or activities receiving Federal financial assistance. The regulations allow the fund granting agency to refer complaints to the Equal Employment Opportunity Commission (EEOC). For complaints covered both by Title VII of the Civil Rights Act of 1964, as amended, or other statutes within EEOC's jurisdiction and by Title VI of the Civil Rights Act or Title IX, the regulations contemplate that most complaints of individual acts of discrimination will be referred to EEOC for investigation and conciliation, while most complaints of systemic discrimination will be retained by the fund granting agency. Employment discrimination complaints which are not covered by Title VI or Title IX will be transferred to EEOC. This proposed rule is not a "major rule" as defined by Section 1(b) of Executive Order 12291.     

Nondiscrimination on the basis of disability by public accommodations and in commercial facilities; Americans With Disabilities Act accessibility guidelines for buildings and facilities--Department of Justice. Final rule: technical amendment

This document contains technical amendments to the regulations on nondiscrimination on the basis of disability by public accommodations and in commercial facilities, which implement title III of the Americans with Disabilities Act (ADA) and to appendix A to those regulations. This final rule makes some technical corrections to the regulations and amends the regulations to reference an Office and Management and Budget control number in compliance with the Paperwork Reduction Act of 1980, as amended.     

Recordkeeping and reporting under Title VII and the ADA--EEOC. Final rule

This final rule is based on two separate Notices of Proposed Rulemaking (NPRM) published on February 13, 1989 (54 FR 6551), and March 5, 1991 (56 FR 9185). This final rule amends 29 CFR part 1602, EEOC's regulations on Recordkeeping and Reporting under title VII of the Civil Rights Act of 1964 (title VII), to add recordkeeping requirements under the Americans with Disabilities Act of 1990 (ADA). It increases the records retention period required in part 1602 for title VII and the ADA from 6 months to one year. The Commission also is adding a new subpart R to part 1602, 29 CFR 1602.56, that will clarify that the Commission has the authority to investigate persons to determine whether they comply with the reporting or recordkeeping requirements of part 1602. In addition, the Commission is making several minor changes to sections 1602.7 and 1602.10. The Commission also is deleting section 1602.14(b) of its title VII recordkeeping regulations, which provides that the section 1602 recordkeeping requirements do not apply to temporary or seasonal positions. Information regarding such employees now must be reported on Standard Form 100 on September 30 of each year, in the same fashion as information regarding permanent employees is reported. Similarly, the Commission is deleting sections 1627.3(b) and 1627.4(a)(2) of the Age Discrimination in Employment Act recordkeeping regulations, which provide for a 90-day retention period for temporary positions, and is clarifying the mandatory nature of such recordkeeping. The Commission is not issuing a final rule on proposed section 1602.57 at this time.     

Benefit plan limitations after the Americans with Disabilities Act

Virtually all company welfare benefit plans contain one or more disability-specific benefit limitations. The Americans with Disabilities Act casts doubt on the lawfulness of these limitations. The legislative history of the ADA is confusing, and the EEOC's failure to offer meaningful guidance on this issue further clouds the situation. Based on the Supreme Court's prior interpretation of language similar to that used in the ADA, we believe all disability-specific limitations adopted prior to the ADA are entitled to a "safe harbor"; disability-specific limitations adopted after Congress passed the ADA are still lawful unless the limitations are intentionally used to discriminate in a nonbenefit aspect of employment.     

Administrative procedures and sanctions; questions and answers relating to the applicability to the petroleum violation escrow funds of regulations of the energy conservation programs--Department of Energy. Ruling

The Department of Energy (DOE) Office of General Counsel issues the appended Ruling to respond to questions relating to the applicability to the petroleum violation escrow funds of the regulations of the energy conservation programs administered by DOE to which these funds can be distributed under Section 155 of the Further Continuing Appropriations Act, Fiscal Year 1983.     

Race categorization and the regulation of business and science

Despite the lack of consensus regarding the meaning or significance of race or ethnicity amongst scientists and the lay public, there are legal requirements and guidelines that dictate the collection of racial and ethnic data across a range of institutions. Legal regulations are typically created through a political process and then face varying kinds of resistance when the state tries to implement them. We explore the nature of this opposition by comparing responses from businesses, scientists, and science-oriented businesses (pharmaceutical and biotechnology companies) to U.S. state regulations that used politically derived racial categorizations, originally created to pursue civil rights goals. We argue that insights from cultural sociology regarding institutional and cultural boundaries can aid understanding of the nature of resistance to regulation. The Food and Drug Administration's guidelines for research by pharmaceutical companies imposed race categories on science-based businesses, leading to objections that emphasized the autonomy and validity of science. In contrast, similar race categories regulating first business by the Equal Employment Opportunity Commission (EEOC) and later scientific research sponsored by the National Institutes of Health (NIH) encountered little challenge. We argue that pharmaceutical companies had the motive (profit) that NIH-supported scientists lacked and a legitimate discourse (boundary work of science) that businesses regulated by the EEOC did not have. The study suggests the utility of a comparative cultural sociology of the politics of legal regulation, particularly when understanding race-related regulation and the importance of examining legal regulations for exploring how the meaning of race or ethnicity are contested and constructed in law.     

Regulations for in vivo radiopharmaceuticals used for diagnosis and monitoring. Food and Drug Administration, HHS. Final rule

The Food and Drug Administration (FDA) is issuing regulations on the evaluation and approval of in vivo radiopharmaceuticals used in the diagnosis and monitoring of diseases. FDA is issuing these regulations in accordance with the Food and Drug Administration Modernization Act of 1997 (the Modernization Act). These regulations are intended to clarify existing regulations applicable to the approval of radiopharmaceutical drugs and biologics under the Federal Food, Drug, and Cosmetic Act (the act) and the Public Health Service Act (the PHS Act).     

Serving two masters: the interaction between Family and Medical Leave Acts and the ADA

The complex interaction between family leave acts and the new Americans with Disabilities Act (ADA) is just coming to light as employers begin to analyze how to comply with both laws. Specifically, the ADA implicates the procedures set forth in most family leave acts for verifying an employee's need for a leave through mandatory medical examinations and doctor's certificates. Many employees who are entitled to a leave of absence under state law are defined as "disabled" under the ADA. The ADA protects these employees with disabilities by regulating medical examinations and inquiries, and protecting the confidentiality of information obtained in such inquiries. This article offers some practical guidance for employers in providing leaves of absence under state family leave acts, while verifying the need for leaves in compliance with the ADA.     

Access to medical care for HIV-infected individuals under the Americans with Disabilities Act: a duty to treat.

In 1990, Congress enacted the Americans with Disabilities Act (ADA). This Note examines the legislative history of the ADA and uncovers Congress's intent to impose a duty on health care providers to treat people with disabilities unless an individual poses a "direct threat" to the health or safety of others. This Note posits that, with the passage of the ADA, Congress imposed a statutory duty on health care providers to give care to people infected with HIV who qualify under the statute. This Note concludes that while the "direct threat" exception may lessen the impact of the ADA, those infected with HIV should enjoy greater access to health care than ever before.     

Call 911: psychiatry and the new Emergency Medical Treatment and Active Labor Act (EMTALA) regulations

The Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, aims to prevent "patient dumping" by requiring hospitals to screen and stabilize patients who come to an emergency room seeking medical attention. For many reasons, recovery under EMTALA is rare, especially when psychiatric treatment is called for. New regulations of EMTALA went into effect on November 10, 2003. These new regulations helpfully clarify the applicability of EMTALA. However, the bias against recovery in cases involving psychiatric emergencies is likely to remain.     

Public Health Service--Information regarding requirements for health maintenance organizations. Notice, information regarding requirements for qualified health maintenance organizations

This notice contains information relating to the requirements for federally qualified health maintenance organizations (HMOs) as set out in Title XIII of the Public Health Service Act (the Act), as amended, and its implementing regulations at 42 CFR Part 110. This information, which includes a number of interpretive rulings, is being published in response to significant questions that have been raised regarding those requirements.     

The ADA at three years: a statute in flux

In the three years since the Americans with Disabilities Act (ADA) was enacted, significant developments have occurred in the form of new administrative and judicial interpretations of the Act. The new guidelines and decisions will assist employers in complying with the ambiguous, and sometimes confusing, provisions of the ADA. Recent developments in areas such as the definition of a disability and the permissibility of medical inquiries, along with continuing developments in the areas of mental disabilities and defining reasonable accommodations, give employers insight into the obligations created by the ADA. These developments are a good starting point to understanding the ADA, but there is still a long way to go. This article surveys the recent developments in the law and examines the considerations that have become important to the Equal Employment Opportunity Commission and the courts in interpreting the ADA's provisions.     

Final regulations on school assessments: an attempt to align the NCLBA and the IDEIA

The Secretary of the U.S. Department of Education (DOE) issued final regulations on education assessments under the No Child Left Behind Act (NCLB) and the Individuals with Disabilities Education Improvement Act (IDEIA), which went into effect on May 9, 2007. These regulations cover how students with disabilities are going to participate in state- and district-wide assessments, and are part of the DOE's effort to align the NCLBA and the IDEIA. This article reviews the new assessment regulations and evaluates whether and how they benefit children with disabilities.     

Nondiscrimination on the basis of age in programs or activities receiving federal financial assistance from HHS. Final rules

These final regulations implement provisions of the Age Discrimination Act of 1975, and the general, governmentwide regulation published in the Federal Register on June 12, 1979, codified at 45 CFR Part 90. The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance. The Act also contains certain exceptions that permit, under limited circumstances, use of age distinctions or factors other than age that may have a disproportionate effect on the basis of age. The Act applies to persons of all ages. These final regulations are designed to guide the actions of recipients of financial assistance from HHS. The regulations incorporate the basic standards for determining what is age discrimination that were set forth in the general regulations. They discuss the responsibilities of HHS recipients and the investigations, conciliation and enforcement procedures HHS will use to ensure compliance with the Act.     

Stigma as a barrier to employment: mental disability and the Americans with Disabilities Act

In a controversial expansion of workplace civil rights, the 1990 Americans with Disability Act (ADA) extended anti-discrimination protection to individuals with "mental impairments." One of the most critical barriers to the employment of individuals with mental disabilities is the degree of social stigma such disabilities incur, and there is compelling evidence that employers have stigmatizing attitudes and have discriminated against those with mental disabilities. This study examines the role played by stigma in employers' response to the 1990 Americans with Disability Act (ADA). A stratified sample of one hundred ninety employers were surveyed in 1996-1997 in a major Southern metropolitan area. Telephone interviews were completed with one hundred seventeen employers (response rate of 61.6%). The article describes employers' experiences with employees with mental disabilities and accommodations, specific employment practices, and attitudes towards those with mental disabilities. Stigma played an important role in conformity to the ADA (operationalized as either hiring or having specific recruiting policies for hiring individuals with mental disabilities). Furthermore, employers expressing coercive (fear of a lawsuit) as opposed to normative (belief that it is the right thing to do) rationales for compliance were more likely to hold stigmatized attitudes. Employers' beliefs about mental disability form a crucial foundation for truly supportive work environments (those that value difference and diversity), and further research is needed to determine if over time the ADA is successful in changing attitudes as well as behavior.     

Title I--improving the academic achievement of the disadvantaged; Individuals with Disabilities Education Act (IDEA)--assistance to states for the education of children with disabilities. Final regulations

The Secretary amends the regulations governing programs administered under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB) (referred to in these regulations as the Title I program) and the regulations governing programs under Part B of the Individuals with Disabilities Education Act (IDEA) (referred to in these regulations as the IDEA program). These regulations provide States with additional flexibility regarding State, local educational agency (LEA), and school accountability for the achievement of a small group of students with disabilities whose progress is such that, even after receiving appropriate instruction, including special education and related services designed to address the students' individual needs, the students' individualized education program (IEP) teams (IEP Teams) are reasonably certain that the students will not achieve grade-level proficiency within the year covered by the students' IEPs.     

Medicare program; self-implementing coverage and payments provisions: 1990 legislation--HCFA. Confirmation of final rule

This document confirms our revisions to Medicare regulations published on August 12, 1992 (57 FR 36006). The revisions conformed the regulations to certain self-implementing provisions on coverage of services and payment requirements. The provisions were included under the Omnibus Budget Reconciliation Act of 1990, the Omnibus Budget Reconciliation Act of 1989 and the Medicare Catastrophic Coverage Act of 1983. We also respond to the comments we received on the revisions to the regulations.     

Mental disabilities under the ADA: a management rights approach

While numerous sources have focused on employee rights and employer obligations under the Americans with Disabilities Act, this article will emphasize employer rights with respect to mental disabilities under the ADA. Specifically, it addresses the ADA's definition of "mental disability," the right of employers to screen job applicants in spite of the ADA, the conditions under which an employer may require an employee to undergo a "fitness for duty" examination, and the limits of the duty to "reasonably accommodate" an employee with a mental disability.