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Revamping U.S. Disability Rules in Secret Draws Criticism

Business groups led by the U.S. Chamber of Commerce pressed the Obama administration to block revised guidelines for discrimination against disabled workers until the public has a chance to review the proposals.

The U.S. Equal Employment Opportunity Commission, which was set to approve the guidance as early as today, deleted the item from a meeting agenda without explanation. The Chamber, in an April 19 letter to Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs, said the guidance could hurt businesses. The advice would help employers comply with the Americans With Disabilities Act on issues such as extended leave and making accommodations for the disabled workers.

“What’s really disturbing us is that it’s being done under the cover of darkness,” Michael Eastman, the Chamber’s executive director for labor law policy, said in an interview. “There has not been any attempt to get input form stakeholders.”

The potential changes to the agency’s guidelines, updated in 2005, haven’t been released, according to Christine Nazer, a commission spokeswoman. The issues were discussed at a June 8 meeting.

“It’s going to be a revision,” Nazer said in an interview. “It will have some expanded information.”

‘Reasonable Accommodation’

Employers are required to provide “reasonable accommodation” for people with disabilities, such as extended unpaid leave for necessary treatment. Representatives of employer and employee groups agreed that more clarity on how to apply the law is needed, said Brian East, senior attorney with Austin, Texas-based Disability Rights Texas.

“Exactly what this guidance is going to say, I don’t know,” East said in an interview. “Both the employer side and employee side suggested the need for additional guidance on leave as an accommodation and on other areas.”

The commission failed to provide a draft of potential changes at the June 8 meeting, according to the Chamber’s letter. The process has advanced “without any meaningful opportunity for stakeholder participation in development of the guidance and without review by” the White House.

The Chamber 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,” according to the letter co-signed by the Alexandria, Virginia-based Society for Human Resource Management and the HR Policy Association based in Washington.

Arrest Records

Proposed changes to guidance on using arrest and conviction records, which also are on today’s meeting agenda, have been known to business groups for more than a year, Eastman said.

“We’ve been talking with them throughout that time,” Eastman said. “So while we don’t think the process is perfect, its orders of magnitude better than the process on this ADA document.”

The commission follows public notice requirements set by Congress when approving regulations, Nazer said.

“Guidance approved by the commission, such as any possible guidance on the use of arrest and conviction records, are sub-regulatory,” she said in an e-mail. “That is, they do not rise to the level or effect of regulations.”

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