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Washington Report: Debit Card Swipe Fee Reform Battle Still in the Spotlight

A new definition in the Americans with Disabilities Act will impact employers; menu labeling rules are still delayed.
April 1, 2011

Swipe Fee Update
Senator Jon Tester (D-MT) is poised to bring up his amendment to delay debit card swipe fee reform as the Senate debates a small business bill. It is not clear if or when the amendment may come up at this time.

Senator Durbin (D-IL), the champion of swipe fee reform, is fully prepared to defend merchants and consumers in the battle to reduce debit card swipe fees. Durbin vowed to use all the procedural tools at his disposal to block the amendment.

In a show of support for swipe fee reform, the Montana Retail Association and Montana Convenience Store Association released a statement yesterday slamming Senator Tester��s legislation and his claim that it will help small businesses:

"One need not look further than who��s endorsed Senator Tester��s legislation to see who stands to benefit the most... Senator Tester��s legislation is endorsed by Visa, MasterCard, Bank of America, JP Morgan Chase, Citibank, and numerous other big banks, the same big banks that brought our economy to the brink just a few years ago."

View the full statement here.

Letters to your Senators are vital at this stage. Numbers count in this battle and we need you to go to nacsonline.com/swipefeesletter and let your senators know just how important this reform is to you and your businesses.

NACS Staff Contact: Lyle Beckwith, lbeckwith@nacsonline.com

New Definition of "Disability" Makes it Easier for Employees to Sue Employers
The Equal Employment Opportunity Commission (EEOC) recently issued a Final Rule and interpretive guidance implementing the Americans with Disabilities Act (ADA) Amendments Act of 2008. The EEOC is responsible for implementing Title I of the ADA, which prohibits employment discrimination on the basis of disability.

The law signed by President George W. Bush in 2008, made several significant changes to the definition of "disability," making it easier for individuals seeking protection under the ADA to establish that they have a disability within the meaning of the statute.

The new rule implements Congress's intent to set predictable standards by adopting "rules of construction" to use when determining if an individual is "substantially limited in performing a major life activity," i.e., has a disability. These rules of construction include:

  • "Substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the language of the ADA. It requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or significantly restrict a major life activity to be considered "substantially limiting."
  • An impairment that is episodic or in remission amounts to a disability if, when active, it would substantially limit a major life activity.
  • Whether an impairment "substantially limits" a major life activity should be determined without regard to the ameliorative effects of mitigating measures, such as hearing aids or medication. (The sole exception to this rule is ordinary eyeglasses or contact lenses.)
  • The regulations provide examples of impairments that should be considered disabilities, including diabetes, epilepsy, cancer, HIV infection, and bipolar disorder.

The EEOC has released to Question-and-Answer documents about the regulations to aid employers and the general public in understanding the law and new regulations. One of these Q+A's is specifically intended for small businesses. These documents can be found here and here.

The new regulations will become effective on May 24, 2011.

NACS Staff Contact: Corey Fitze, fitze@nacsonline.com

Stay Tuned for Menu Labeling Rules
According to a health care law enacted in 2010, rules directing foodservice establishments on implementing menu labeling provisions were expected to be issued last week. The FDA has delayed coming out with the proposed rule as they continue to work with all the affected parties.

NACS will keep retailers posted as soon as new developments occur. It is not expected that the delay will be too long.

NACS Staff Contact: Julie Fields, jfields@nacsonline.com