DOL Proposes Drug Testing for Unemployme​nt Compensati​on Applicants

by Shannon Allen

The Employment and Training Administration (“ETA”) of the U.S. Department of Labor (“Department”), proposed a controversial new rule for the Federal-State Unemployment Compensation Program.  The purpose of the proposed regulation (§ 620.1) is to implement section 303(l)(A)(ii), Social Security Act (“SSA”), permitting the drug testing of Unemployment Compensation (“UC”) applicants for the use of controlled substances where suitable work (as defined under the State's UC law) is only available in an occupation for which drug testing is regularly conducted.

These proposed rules would implement the Middle Class Tax Relief and Job Creation Act of 2012 (“the Act”) amendments to the SSA and allow States to enact legislation that would permit State Unemployment Insurance (“UI”) agencies to conduct drug testing on UC applicants for whom suitable work is only available in an occupation that regularly conducts drug testing.  Under these situations, States may deny UC to an applicant who tests positive for drug use.  These two explicit situations are:

• Where the applicant was terminated from employment with the applicant's most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.); or 
• Where the only available suitable work for an individual is in an occupation that regularly conducts drug testing.

For State UI program purposes, the Department’s Notice of proposed rulemaking (“NPRM”) seeks to define and regulate occupations that regularly conduct drug testing.

The Department asserts that the proposed regulations: will impact a very limited number of applicants for unemployment compensation benefits; do not have a substantial direct effect on the States or the relationship between the National Government and the States because drug testing authorized by the regulation is voluntary on the part of the State, not required; and do not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.

The Department seeks comment on the proposed regulations and specifically encourages comments on methods to refresh the list of occupations that regularly drug test. Comments must be submitted in writing on or before December 8, 2014.  Interested parties may submit comments, identified by Regulatory Information Number (RIN) 1205-AB63, by only one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the Web site instructions for submitting comments; OR 
• Mail and hand delivery/courier: Written comments, disk, and CD-ROM submissions may be mailed to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

DOJ Proposes Rule to Aid Hearing or Vision Impaired Moviegoers

by Elisabeth Ulmer

The Department of Justice (“DOJ”) seeks comment on a notice of proposed rulemaking (NPRM) to amend Title III of the Americans with Disabilities Act of 1990 (“ADA”) with respect to the exhibition of movies with closed captioning and audio description.  First, this regulation would explicitly require theaters to exhibit such movies “at all times and for all showings” whenever a version with these features has been produced.  Second, the regulation would require theaters to “have a certain number of individual closed captioning and audio description devices” available for people with hearing or vision limitations.  The DOJ is considering a six-month compliance date for digital movie screens and a four-year compliance date for analog (film) movie screens.

Title III of the ADA guarantees effective communication for persons with disabilities.  Covered entities, such as movie theaters, must take “such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently…because of the absence of auxiliary aids and services,” unless these entities demonstrate a fundamental alteration or undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).  Under the ADA, this obligation should be met across the United States, but although a large number of motion pictures from the major domestic movie studios include closed captioning and audio description, in some jurisdictions these versions are not made available.

The DOJ has observed that people who are deaf or hard of hearing or blind or have low vision accordingly “still cannot fully take part in movie-going outings with family or friends” and are deprived “of the opportunity to meaningfully participate in an important aspect of American culture.”  Moreover, Americans with limited hearing or vision “represent an ever-increasing proportion of the population.”  Given the current shift from analog to digital cinema systems, showing movies with closed captioning and audio description is also now both easier and less expensive.  For all of these reasons, the DOJ believes that its proposed amendments are “necessary in order to achieve the goals and promise of the ADA.”

Under the proposed regulation, if a movie has been produced and distributed with closed captioning and audio description, theaters must procure and show this version.  Theaters will not be obligated to create their own captioning or audio descriptions and thus may show movies that have not been produced with these features.  The proposed regulation also would require theaters to have a certain number of individual captioning devices and audio description devices available upon request.  This number will be ”based upon the number of seats in the movie theater itself and can be shared among the screens in the theater,” and theater staff must be capable of operating these devices and instructing patrons on their use.  Finally, theaters should provide notice as to which movies are available with captions and audio description.

The DOJ particularly seeks comment on the following two options regarding analog movie screens. Option 1 would be to adopt a four-year compliance date, which would allow theaters with analog screens “to obtain the necessary resources to purchase the equipment to provide closed captioning and audio description.”  Alternatively, under Option 2, the DOJ would postpone applying the requirements of its proposed regulation to theaters with analog screens because the nature of analogs is fluctuating with the shift from analog to digital cinema systems.

All comments are due on December 1, 2014.  Interested parties are invited to submit comments by any of the following methods:

• Online Filing: http://www.regulations.gov (Regulations.gov Docket ID: DOJ-CRT-126) 
• Mail: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-0885 
• Overnight, courier, or hand delivery: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue NW., Suite 4039, Washington, DC 20005

All comments should be identified as RIN 1190-AA63.