[The Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions]
[Equal Employment Opportunity Commission Regulatory Plan]
[From the U.S. Government Printing Office, www.gpo.gov]

Federal Register / Vol. 61, No. 231 / Friday, November 29, 1996 / The
                            Regulatory Plan

[[Page 62175]]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
Statement of Regulatory and Deregulatory Priorities
The Equal Employment Opportunity Commission (EEOC) enforces six 
statutes prohibiting discrimination in employment. Title VII of the 
Civil Rights Act of 1964, as amended, prohibits employment 
discrimination on the basis of race, color, sex, religion, or national 
origin. The Equal Pay Act of 1963, as amended, prohibits the payment of 
different wages to women and men working in the same establishment, 
performing equal work that requires equal skill, effort, and 
responsibility under similar working conditions, unless the pay 
differential is based on factor(s) other than sex. The Age 
Discrimination in Employment Act of 1967, as amended (ADEA), prohibits 
employment discrimination on the basis of age against people age 40 and 
older. Title I of the Americans with Disabilities Act of 1990, as 
amended (ADA), prohibits employment discrimination against qualified 
individuals with disabilities. Sections 501 and 505 of the 
Rehabilitation Act of 1973, as amended, prohibit Federal agencies from 
discrimination in employment against qualified individuals with 
disabilities and require agencies to accommodate the special needs of 
persons with disabilities. The Government Employee Rights Act of 1991 
extends protections against employment discrimination to certain 
employees who were not previously covered.
The mission of the agency is to ensure equality of opportunity by 
vigorously enforcing Federal legislation prohibiting discrimination in 
employment. Enforcement is accomplished through investigation, 
conciliation, alternative methods of dispute resolution, litigation, 
coordination, and regulation, as well as by education, policy research, 
and technical assistance. In pursuing its mission of eradicating 
discrimination in the workplace, the Commission intends that its 
enforcement be certain and predictable, and that its remedies be 
preventive and remedial in scope.
One important step toward these ends is to make sure that employees, 
employers, and union representatives understand their rights and 
obligations under the Federal laws prohibiting employment 
discrimination. In accordance with the President's national regulatory 
principles, EEOC develops regulations necessary to inform employees and 
employers of their rights and obligations under the statutes it 
enforces. EEOC further educates the public on an ongoing and proactive 
basis, through interpretive guidelines, policy documents, management 
directives, and other public guidance programs.
EEOC is currently considering two significant actions of a regulatory 
nature, which would be published for public comment. The Commission is 
considering issuing guidelines on the requirements of title I of the 
ADA in the context of employer provided health insurance. Clear and 
comprehensive guidelines will reduce confusion and uncertainty on the 
part of insurers, employers, and individuals with disabilities as to 
the application of the ADA to various health insurance provisions and 
practices. In addition to helping employers understand the scope of 
their nondiscrimination responsibilities and ensuring that individuals 
with disabilities are protected from prohibited discrimination, these 
guidelines will provide a source of guidance for the courts, thus 
helping to ensure uniform enforcement of the ADA.
The Commission is also considering issuing regulatory guidance on title 
II of the Older Workers Benefit Protection Act of 1990, which amended 
the ADEA to permit knowing and voluntary unsupervised waivers of rights 
and claims arising under the Act. Representatives of both the employer 
and employee communities have strongly demonstrated their interest in 
the issuance of additional guidance in this area. As part of the 
development of a regulation on waivers under the ADEA, the Commission 
has engaged in a regulatory negotiation and obtained a consensus 
recommendation to the Commission. The Commissioners approved the 
recommendation unanimously on October 9, 1996.
(Consistent with section 4(c) of Executive Order 12866, this statement 
was reviewed and approved by the Chairman of the agency. The statement 
has not been reviewed or approved by the other members of the 
Commission.)
_______________________________________________________________________
EEOC

                              -----------

                          PROPOSED RULE STAGE

                              -----------

135. GUIDELINES ON THE APPLICATION OF THE AMERICANS WITH DISABILITIES 
ACT OF 1990 TO EMPLOYER PROVIDED HEALTH INSURANCE
Priority:


Other Significant


Legal Authority:


 42 USC 12111 et seq


CFR Citation:


 29 CFR 1631


Legal Deadline:


None


Abstract:


The Commission proposes to issue guidelines to explain how the 
Americans with Disabilities Act (ADA) applies to employer provided 
health insurance plans. The guidelines will reexamine the issues 
addressed in the Commission's ``Interim Enforcement Guidance on the 
Application of the ADA to Disability-Based Distinctions in Employer 
Provided Health Insurance,'' issued on June 8, 1993. The guidelines 
will also address a number of issues that were not addressed in either 
the Interim Enforcement Guidance or in the Commission regulations 
implementing title I of the ADA, including the ADA's application to 
corporate ``wellness'' programs. The proposed guidelines will be 
published for public comment. After consideration of the comments, the 
Commission will issue final guidelines.


Statement of Need:


Title I of the ADA prohibits employers with 15 or more employees from 
discriminating on the basis of disability in the provision of fringe 
benefits, including employer provided health insurance. Title V of the 
ADA, as applied to title I, permits employers, insurers, and plan 
administrators to continue to establish or observe the terms of health 
insurance plans, engage in risk-based underwriting, and/or use risk 
assessment, risk classification, or other traditional insurance 
practices, so long as these practices are not used as a subterfuge to 
evade the purposes of the ADA, 42 USC 12201(c).
Neither the statute nor its legislative history defines the term 
``subterfuge'' or explains the application of that term to specific 
insurance practices or

[[Page 62176]]

provisions. This has given rise to confusion and uncertainty on the 
part of insurers, employers, and individuals with disabilities, as to 
the requirements of the ADA in the context of employer provided health 
insurance. The guidelines are necessary to alleviate this confusion and 
uncertainty, thereby reducing potential employment discrimination and/
or litigation that is based upon a misunderstanding of the law.


Summary of the Legal Basis:


The legal basis of authority for these guidelines is set forth above in 
Legal Authority. No aspect of this regulatory action is required by 
statute or court order.


Alternatives:


After careful consideration, the Commission has determined that the 
issuance of these guidelines is the most efficient and effective way to 
clarify the application of the ADA to employer provided health 
insurance, and to ensure uniform enforcement of the ADA in this area.


Anticipated Costs and Benefits:


Clear and comprehensive guidelines will reduce confusion and 
uncertainty on the part of insurers, employers, and individuals with 
disabilities as to the application of the ADA to various health 
insurance provisions and practices. This will help ensure that 
individuals with disabilities are protected from prohibited 
discrimination, and that employers understand the scope of their 
nondiscrimination responsibilities under the law. These guidelines will 
also assist courts confronting these issues to ensure uniform 
enforcement of the ADA.


Risks:


In the absence of these guidelines, confusion and uncertainty with 
respect to the application of the ADA to various health insurance 
provisions and practices may result in prohibited employment 
discrimination against individuals with disabilities. Such confusion 
and uncertainty may also result in unnecessary apprehension on the part 
of employers as to the legality of actions they may take to better 
manage and contain escalating health care costs.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
NPRM                                                           09/00/97
Small Entities Affected:


Undetermined


Government Levels Affected:


Undetermined


Agency Contact:
Lyn McDermott
Acting Assistant Legal Counsel
Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW.
Washington, DC 20507
Phone: 202 663-4503
TDD: 202 663-7026
RIN: 3046-AA53
_______________________________________________________________________
EEOC
136. REGULATIONS INTERPRETING TITLE II OF THE OLDER WORKERS BENEFIT 
PROTECTION ACT OF 1990 (OWBPA)
Priority:


Other Significant


Legal Authority:


 29 USC 628


CFR Citation:


 29 CFR 1625


Legal Deadline:


None


Abstract:


The Age Discrimination in Employment Act of 1967 (ADEA) was amended in 
1990 by OWBPA. Title II of OWBPA sets forth the statutory requirements 
for a valid waiver of rights under the ADEA.
Regulations under title II would provide guidance on implementing 
OWBPA's requirements for unsupervised ADEA waivers. As part of the 
development of this regulation, the Commission engaged in regulatory 
negotiations on waivers of rights and claims under the ADEA.


Statement of Need:


In 1990, Congress amended the ADEA to permit knowing and voluntary 
unsupervised waivers of rights and claims arising under the Act. In 
1992, the Commission published a notice in the  Federal Register 
seeking public comment on various ADEA issues, including the topic of 
waiver agreements. In response to the notice the Commission received 
numerous detailed comments on the waivers provisions which demonstrated 
a need for regulatory guidance. Over the ensuing years, representatives 
of employer and employee communities have expressed a continuing 
interest in receiving such guidance. Waiver agreements are widely used 
in the workplace, particularly when employers find it necessary to 
reduce the size of the workforce. Employees who sign waiver agreements 
are bargaining away important Federal rights in return for some form of 
consideration. Employers are offering additional benefits, sometimes 
quite substantial, in exchange for employee agreements to forgo 
potential recovery in age discrimination lawsuits. Both sides have a 
substantial stake in this area of the law and would benefit from 
regulatory guidance.


Summary of the Legal Basis:


Section 9 of the ADEA authorizes the Commission to issue such rules and 
regulations as it may consider necessary or appropriate for carrying 
out the Act. Moreover, regulatory negotiation is authorized by the 
Negotiated Rulemaking Act of 1990, and is consistent with the 
President's goal of involving stakeholders in the regulatory process.


Alternatives:


The objective of a regulatory negotiation is to seek to obtain a 
consensus recommendation to the Commission. Thus, the process itself 
involved consideration of various alternatives with the affected 
parties agreeing upon proposed regulatory positions.


Anticipated Costs and Benefits:


Clear regulatory guidance for the use of waiver agreements should lead 
to increased voluntary resolution of potential employment disputes, 
which in turn will reduce the possibility of protracted and costly 
litigation. At the same time, providing clear regulatory guidance on 
what constitutes a valid waiver agreement will ensure that persons 
enter into such agreements only in a knowing and voluntary manner. It 
is not anticipated that any costs will arise from issuing regulatory 
guidance.


Risks:


Regulatory guidance for drafting and implementing valid waiver 
agreements will lessen the risk that persons might waive important 
Federal civil rights in an unknowing or involuntary manner. The 
Commission has a substantial interest in addressing this risk. The ADEA 
is intended to implement the strong public interest in attaining a

[[Page 62177]]

workplace free of age discrimination. Individual employees serving as 
private attorneys general are an integral part of the ADEA enforcement 
scheme crafted by Congress. Thus, it is of critical import that persons 
who may choose to relinquish their Federal civil rights do so 
voluntarily and with full knowledge. Moreover, other Federal civil 
rights laws enforced by the Commission, for example Title VII, envision 
an important role for aggrieved individuals as private attorneys 
general. Insofar as waiver agreements may be used under statutes other 
than the ADEA, clear guidance will also lessen the risk of abuse in 
those areas.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
ANPRM           57 FR 10626                                    03/27/92
ANPRM Comment Period End                                       07/27/92
Notice of Intent60 FR 45388lemaking Advisory Committee         08/31/95
Notice of Establ60 FR 54207Rulemaking Advisory Committee       10/20/95
NPRM                                                           02/00/97
Small Entities Affected:


Undetermined


Government Levels Affected:


Undetermined


Agency Contact:
Joseph N. Cleary
Assistant Legal Counsel
Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW.
Washington, DC 20507
Phone: 202 663-4690
TDD: 202 663-7026
RIN: 3046-AA58
BILLING CODE 6570-01-F