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By JOSHUA CLIFTON, a Chicago-based writer who covers workers' comp and disability issues

As we usher in the new year, workers' compensation and disability management professionals are preparing to navigate a changing regulatory landscape in 2010.

In its latest regulatory agenda, the EEOC said it is in the process of reviewing more than 600 public comments in response to the ADAAA, which went into effect on Jan. 1, 2009. William Schurgin, a labor and employment law specialist, said it is difficult to predict what the EEOC will do regarding the final regulations.

"It is the opinion of many groups, including the Society for Human Resource Management, that there are a number of areas where the proposed regulations go beyond the legislative intent in passing the ADAAA by expanding the definition of disability further than Congress intended," said Schurgin, partner at Seyfarth Shaw LLP.

Schurgin also said that some of the regulations do not accurately reflect the language of the statute, which revised the definition of disability. The revisions, which are expected to increase the number of reasonable accommodation requests, will mean more work for employers. Most notably, he said, the regulations remove any reference to the factors of condition, duration and manner in assessing whether an impairment "substantially limits" a major life activity.

In addition, said Schurgin, many employers have taken issue with the proposed regulations' definition of mitigating measures. For example, he pointed out that the proposed regulation needlessly complicates the consideration of "ordinary eyeglasses or contact lenses" when evaluating whether or not an individual's visual impairment constitutes a disability.

In addition, Schurgin said the regs add all surgical interventions as a mitigating measure, except those that permanently eliminate an impairment. This, he said, expands ADAAA coverage beyond what was intended by Congress.

Regardless of how the EEOC addresses the concerns, employers shouldn't wait for the final regulations before taking action.

"From a practical standpoint, employers must focus on making sure they have good standards in place to determine the essential functions of a job, as well as solid reasonable accommodation practices in place that will allow individuals with medical conditions to be evaluated on a case-by-case basis," he said. "You must be very careful when saying that a condition is not a disability, because we just don't know where the line will be drawn."

HEALTH AND SAFETY

After languishing under the Bush administration for years, the Occupational Safety and Health Administration (OSHA) has grown a new set a teeth. In December, the Senate quickly confirmed David Michaels to head the agency, over the objections of business leaders who had pushed for a full hearing. Michaels, an epidemiologist and former research professor at George Washington University, was a strong critic of OSHA's direction under the Bush administration when it issued voluntary ergonomics guidance.

With Michaels' desire for an enforceable national ergonomics standard, coupled with a 10 percent increase in OSHA's budget and the addition of more than 200 personnel, experts anticipate tighter enforcement and regulatory action this year.

Cindy Roth, president and CEO of Ergonomic Technologies Corp. in Syosset, N.Y., said that under Obama, OSHA will have a larger seat at the table and assume a more prominent role than in past administrations.

"Historically, OSHA has always been second to the Environmental Protection Agency (EPA), which is very strong and levies significant fines," she said. "When the EPA comes calling, employers listen; they don't fool around. While I don't think that OSHA will reach that level of strength, I do believe greater enforcement capabilities, new regulations and rulemaking will be an aspect of life going forward for businesses."

In early 2010, OSHA is expected to propose a rule that would require employers to separately list work-related musculoskeletal disorders from other conditions on the agency's 300 Injury and Illness Log. Jordan Barab, acting assistant secretary for OSHA, reassured employers that the move wasn't a first step in the resurrection of an enforceable ergonomics standard. However, Roth said it may represent something much more significant than a minor change in data-collection techniques.

"This is probably the beginning of what might be a change in legislation to bring forth an ergonomics standard," she said. "When you are building a case for a major regulatory change, you need to be able to back up your argument. You can look at this as the start of a formal data gathering effort to provide cost justification for such a standard."

In addition to ergonomics, Roth said OSHA's regulatory agenda signals that the agency will be taking a more active role in mitigating injuries. New rules on the upcoming agenda cover combustible dust; slip, trip and fall hazards; and crystalline silica dust.

GENETIC INFORMATION NONDISCRIMINATION ACT

Employers are also facing new regulations aimed at preventing genetic discrimination. The Genetic Information Nondiscrimination Act prohibits employers from using genetic information in making employment decisions, restricts employers from acquiring certain genetic information, imposes confidentiality requirements on genetic information acquired by an employer and prohibits retaliation against an individual who opposes actions made unlawful by the act. Final regulations are expected to be issued soon by the EEOC, which is charged with enforcing GINA.

Keith Clous, an employment law attorney with Clouse Dunn Khoshbin LLP, recommended employers update their workplace posters (a revised version of the EEOC's anti-discrimination poster is available on the agency's Web site), revise employee handbooks to reflect compliance with GINA, and train supervisors and managers about the new law.

Steve Pearlman, partner in Seyfarth Shaw's Labor & Employment Department, said most employers don't feel as if they need to pay much attention to the regulation because they don't perceive that what they do is genetic testing. Not so.

"GINA has a wide-reaching impact, and employers need to be aware of that and get into compliance quickly," he said. "Although we may not see a proliferation of litigation immediately, employers should be conducting self audits to ensure they are compliant with GINA's collection and anti-disclosure requirements."

Pearlman also said employers should review information they request to determine if an employee is fit for duty--post-offer but pre-employment. Some employers, he said, may unwittingly ask questions that will elicit information about family medical history.

Although sections of GINA define its interaction with other laws, Pearlman said the act's relationship with most statutes remains unclear, including how workers' compensation will relate to GINA.

"The only statement that explicitly applies (to workers' comp) in the statute is that GINA does not limit or expand complications under workers' comp laws," he said. "Perhaps the final regulations will delve into greater detail on this issue."

Regarding OSHA's jurisdiction of GINA, Pearlman said, the act does not limit statutory or regulatory authority of the agency.

In addition to GINA, the ADAAAA and a stronger OSHA, employers must keep up with other regulatory challenges, such as evolving Medicare secondary payer reporting requirements and the Health Information Technology for Economic and Clinical Health Act, which mandates additional healthcare information privacy guidelines.

With most employers happy to have 2009 in the rearview mirror, still, it won't likely be smooth sailing in the months ahead. In a time of continued financial belt-tightening, experts say employers must focus on complying with these new and recently finalized regulations, and remain vigilant in their efforts to maintain a safe and health work environment. In the midst of the worst recession in decades, regulatory compliance can play a key role in preventing protracted legal battles and government citations, which is critical to charting a course for profitability in the years to come.

January 7, 2010

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