In their recent regulatory agendas, the Equal Employment Opportunity Commission and U.S. Department of Labor indicated upcoming rulemakings that could have significant impacts on employer practices under the Americans with Disabilities Act and Family and Medical Leave Act.

The EEOC announced its intent by the end of 2019 to issue new proposed rules on the ability of employers to offer employee wellness programs. In 2017, a federal district court required the agency to reconsider its prior rule, which placed limits on employer incentives and penalties associated with wellness program compliance. Under the ADA, the EEOC has contended in the past that certain program features discriminate against disabled persons unable to comply due to their medical conditions.

The DOL regulatory agenda announced an upcoming effort to review and update FMLA regulations. When last reviewed, DOL caused employers considerable heartburn when the agency declined to revisit rules regarding intermittent leave. Many employers believe that the current rules allow unscrupulous employees to exploit intermittent leave, giving them the sometimes permanent ability to miss work with little or no advance notice, based on dubious reasons. Employers asked DOL to curb the use of unforeseeable intermittent leave, or at least to give employers flexibility to reassign employees to less critical duties. During the previous review, DOL claimed that it lacked the statutory authority to change the intermittent leave rules. Many employers will expect the current agency to take a different approach.

DOL expects to publish proposed revisions to the FMLA rules by April 2020, but this date is subject to change.