By Howard Fine
Employer groups are expressing concern about new federal regulations under the Americans With Disabilities Act proposed last month by the Department of Justice.
The rules implement guidelines enacted three years ago to update the disabilities act, which passed in 1990. They are meant to address ambiguities in the original law and complaints from disabled worker advocates about compliance by employers and operators of public facilities.
The proposed rules, which take up 215,000 words in the Federal Register, are open for comment through mid-August. They range from the general (most work areas must have “circulation paths” wide enough to accommodate wheelchairs) to the specific (light switches in new hotel rooms must be no more than 48 inches above the floor).
The complexity of the rules likely will cause trouble for employers, according to the U.S. Chamber of Commerce.
“There’s a whole group of lawyers who do nothing but come into facilities and look for technical violations of the ADA and then file suit against employers,” said Mark Freedman, director of labor law policy.
It’s unclear in the new regulations how much retrofitting of existing facilities and workplaces employers will have to do to comply with the new rules, Freedman said.
When the proposed rules were published, Justice Department officials noted that they contain a “safe harbor” provision for small businesses: If they spend at least 1% of their gross revenue on making improvements to accommodate the disabled in a given year, the next year they will be considered in compliance. After the grace period ends, the business would be exposed again to the law.
Cell Phone Law
With the state law banning the use of hand-held cell phones while driving going into effect last week, the California Chamber of Commerce is warning employers that they must update their policies to prohibit their employees from using hand-held cell phones while driving to and from appointments.
“If employers are not clear enough in their prohibition of the use of cell phones while driving, they can be held liable for costs associated with car accidents, including workers’ compensation, while an employee is working,” said Jessica Hawthorne, an employment lawyer with the chamber.
Hawthorne goes even further: She advises that employers not even require their workers to be reachable by cell phone while driving.
Employers don’t have to provide hands-free devices to their employees, according to Hawthorne.
Sarbanes-Oxley Relief
Small companies with a market capitalization below $75 million can breathe a sigh of relief after getting a reprieve from a Sarbanes-Oxley auditing provision widely considered complicated and costly.
The Securities and Exchange Commission said last month that it has approved a one-year extension of the date by which small public companies must comply with Section 404(b) of the act.
Section 404, which requires a public company to evaluate its management’s internal control over financial reporting and obtain external auditor approval, is considered the most burdensome aspect of the often criticized Sarbanes-Oxley.
Companies already have to assess their internal controls. But the SEC decision allows small companies to avoid the expense of external audits until they file annual reports for fiscal years ending on or after Dec. 15, 2009. SEC Chairman Christopher Cox, citing the disproportionate cost of compliance for small companies, proposed the extension in December.
Within the next year, the SEC also expects to complete a cost-benefit study on the impact that Sarbanes-Oxley compliance has on small companies.
Fine is a staff writer with the Los Angeles Business Journal. Richard Clough contributed to this column.
