This newsletter provides a summary of 3 key articles: 1) The EEOC issued new guidance on applying the ADA to cancer, diabetes, epilepsy and intellectual disabilities. It defines these conditions as disabilities and provides examples of reasonable accommodations. 2) Employers must continue complying with IRS regulations for nonqualified deferred compensation plans to avoid penalties. The IRS provides voluntary correction programs for document and operational failures. 3) Comprehensive immigration reform being debated in Congress would impact recruiting, benefits and HR for many employers. The Senate may pass a bill by July and the House is considering separate reform bills.

1. PattonBoggs.com Employment Law Insight 1
JUNE 2013
This newsletter provides only
general information and should
not be relied upon as legal advice.
This newsletter may be considered
attorney advertising under court
and bar rules in certain
jurisdictions.
IN THIS ISSUE
Introduction 1
EEOC Issues Guidance on the
ADA and Cancer, Diabetes,
Epilepsy and Intellectual
Disabilities 2
Continued Vigilance Required
for Nonqualified Deferred
Compensation Arrangements 4
Employment Law Update:
Immigration Reform
on the Hill 6
U.S. Customs and Border
Protection Revises I-94
Processes 6
EMPLOYMENT LAW INSIGHT
INTRODUCTION
By Douglas B. Mishkin, Partner and Co-Chair, Employment Law Practice Group
Welcome to the inaugural edition of the Employment Law Insight, a service of the
Employment Law practice group at Patton Boggs LLP.
Employers are best served by integrated legal services that address their core
needs: employment (discrimination and harassment, compensation and
noncompetition); benefits; immigration; and health and safety. Our Employment
Law practice group provides such services to our clients throughout the United
States and internationally.
Why “Employment Law Insight”? Employers have available to them, and indeed
are besieged by, a wealth of legal information about the workplace on a daily basis.
Our purpose is to select from that wealth of information those nuggets we think
are most worthy of your attention and then to offer insight – a different way of
looking at an issue, of conducting your workplace, of addressing your thorniest
problems.
Our group comprises litigators and counselors and policy professionals.
Collectively we bring an array of perspectives to the challenges that employers
face as employers. Staying out of court, litigating aggressively when necessary to
protect your interests, monitoring legislative and agency developments and
occasionally examining the possibilities for changing the law all have their time
and place. An employer should expect its law firm to determine and provide the
right approach for the right situation. Our Employment Law practice group does
just that.
We hope you will find our Employment Law Insight a helpful addition to your
professional reading. You will find author contact information for each article
provided. We welcome your questions, comments and other feedback, and look
forward to “speaking” with you from time to time.

2. PattonBoggs.com Employment Law Insight 2
EEOC ISSUES GUIDANCE ON
THE ADA AND CANCER,
DIABETES, EPILEPSY AND
INTELLECTUAL DISABILITIES
Jennifer L. Keefe, Partner
Caroline Davidson-Hood, Associate
On May 15, the Equal Employment Opportunity
Commission (EEOC) issued new guidance on the
applicability of the Americans with Disabilities Act
(ADA) to job applicants and employees with cancer,
diabetes, epilepsy and intellectual disabilities. A
complete overview of the new guidance is provided on
the EEOC website, in a section on disability
discrimination is available here.
As EEOC Chair Jacqueline Berrien explained, “While
there is a considerable amount of general information
available about the ADA, the EEOC often is asked
about how the ADA applies to these conditions.” The
guidance anticipates and responds to some of those
questions, providing examples of reasonable
accommodations employers may be expected to make
for employees with one of the conditions.
PROTECTED DISABILITIES
The guidance defines each of the four conditions and
identifies them as protected disabilities under the
ADA as amended by the American with Disabilities
Amendments Act of 2008 (ADAAA). Just as the
ADA’s definition of “disability” includes a “record” of
impairment that rises to the level of a disability, cancer
that is in remission or diabetes that is controlled by
medication or diet are considered disabilities.
According to the EEOC, an “intellectual disability”
exists if one’s IQ is below 70-75; one is limited in
“adaptive skill areas” such as communication, self-
care, home living, social skills, health and safety, self-
direction, functional academics such as reading,
writing or math; and the disability originated before
the age of 18.
OBTAINING AND DISCLOSING MEDICAL
INFORMATION
The ADA has long prohibited employers from asking
a job applicant about his or her disability before an
offer is made unless the disability is obvious or
voluntarily disclosed. Inquiries are permitted after an
offer is made, so long as all similarly-situated
applicants are treated the same. Once the employer
obtains medical information, it may follow-up with
questions such as whether the condition will interfere
with the employee’s ability to do the job.
The guidance explains, for example, that if a candidate
for a chef position discloses his epilepsy in his post-
offer medical evaluation, the employer may ask
whether he can safely work with hot and sharp
objects. If the epilepsy is controlled by medication
and the candidate has safely worked as a chef for
several years, the employer may not withdraw the
offer. An employer may request documentation from
the candidate’s doctor verifying the condition. Except
in specified circumstances, an employer must not
disclose any information about the employee’s
condition.

3. PattonBoggs.com Employment Law Insight 3
REASONABLE ACCOMMODATION
Under the ADA as amended, an employer must
provide a reasonable accommodation if an employee
requests one or the need for the accommodation is
evident, so long as the request does not impose an
undue burden. For each of the four conditions
discussed, the EEOC suggests a number of reasonable
accommodations.
For a person with an intellectual disability, reasonable
accommodations might include reading written
instruction aloud, expanding trainings and using
demonstrations, placing pictures or color-coding
instead of words on labels. If an employee is limited
from performing functions that are marginal to a job,
like closing out the register at a concession stand at the
end of an evening, that person may be assigned
alternative tasks, such as cleaning.
Reasonable accommodations for diabetes include
providing a private place to administer injections and
breaks to eat, drink, take medication or check blood
sugar levels as needed. For cancer, reasonable
accommodations include leave for doctor’s
appointments, rest or medication breaks, a modified
schedule, permission to work from home, or change in
office temperature. The guidance encourages flex-
time schedules or shift changes to permit employees to
attend weekday radiation treatments or doctor’s
appointments during regular business hours.
For epileptics, common reasonable accommodations
include permission to bring a service animal to work,
providing a driver for meetings and other work-related
events, or permitting work from home.
SAFETY
Employers must be careful not to act on the basis of
myth, fears or stereotypes in addressing workplace
safety concerns. Refusing to hire--or terminating--an
individual with a disability for safety reasons must be
justified by a “direct threat” of substantial harm that
cannot be eliminated or reduced by reasonable
accommodation. The harm must be serious and likely
to occur, not speculative.
For example, an epileptic welder who fails to take
medication and experiences sudden and unpredictable
seizures is a direct threat. An employer may not
demote a cancer survivor because of fears that job
stress may cause a relapse. Similarly, an employer
should not assume that a person with intellectual
disabilities may not work in a kitchen with sharp
knives and hot ovens unless it has specific information
indicating that the employee cannot understand and
follow safety procedures. Finally, to prevent
harassment in the workplace, the EEOC suggests that
employers maintain and enforce a written policy and
conduct periodic training.
In light of recent EEOC lawsuits under the Genetic
Information Non-Discrimination Act, the new
guidance suggests that the EEOC is paying heightened
attention to the intersection of health matters and
discrimination in the workplace, particularly when
such discrimination may be related to one of the four
conditions specified.
Employers with current or prospective employees with
any of the conditions specified should review the new
guidance to ensure compliance. Complex questions or

4. PattonBoggs.com Employment Law Insight 4
issues may be discussed with any member of the
Patton Boggs Employment Law practice group.
Please contact Jennifer L. Keefe at 214.758.1563 or
jkeefe@pattonboggs.com or Caroline Davidson-
Hood at 202.457.5257 or
cdavidsonhood@pattonboggs.com with any questions
or concerns about the issues raised in this article.
CONTINUED VIGILANCE
REQUIRED FOR
NONQUALIFIED
DEFERRED COMPENSATION
ARRANGEMENTS
Stacey Grundman, Benefits Attorney
The newness of the IRC Section 409A regulations
governing deferred compensation is long-gone, but
the complexities of this regulatory scheme remain
burdensome and all should be vigilant to ensure
compliance as penalties can be severe.
If you have been avoiding addressing potential Section
409A problems or think some have been overlooked,
there are voluntary corrections programs available to
bring deferred compensation plans into compliance.
BACKGROUND
As a refresher, Section 409A and its implementing
regulations impose sweeping restrictions on a broad
range of deferred compensation arrangements. The
penalties for noncompliance are steep – immediate
inclusion in income for all vested benefits and a 20
percent excise tax on all such amounts.
All compensation that is earned, or to which there is a
legally binding right, in one taxable year, but that is
payable and includable in income, pursuant to the
terms or a plan or arrangement, in a subsequent tax
year is considered deferred compensation subject to
Section 409A. Thus, deferred compensation is
defined broadly – raising Section 409A issues in a
variety of plans and arrangements including:
→ SERPs, excess benefit plans, and other
nonqualified retirement plans;
→ Separation and severance plans;
→ Bonus plans;
→ Salary continuation arrangements;
→ Employment agreements;
→ Performance/incentive pay arrangements;
→ Stock option plans;
→ Guaranteed payments under partnership and
LLC agreements;
→ Warrants or other rights to acquire interests in
partnerships and LLCs;
→ Leave programs;
→ Sick pay plans; and
→ Split dollar life insurance arrangements
(providing benefits other than death benefits).
Code Section 409A limits the distribution of benefits
to specified events or times and prohibits the delay or
acceleration of the benefit payment schedule unless
certain conditions are met. Specifically, distributions
may only occur upon a separation from service
(provided that a “specified employee” of a public
company may not receive distributions until at least six
months after separation); a fixed time, or pursuant to a
fixed schedule, specified under the plan; death;

5. PattonBoggs.com Employment Law Insight 5
disability; change in control; or an unforeseeable
emergency.
In order to comply with Section 409A, a deferral
election must be made by the end of the year
preceding the calendar year in which services are to be
provided. Generally, a change in the time and form of
a distribution is permitted only if (a) the election to
delay is made at least 12 months before a scheduled
payment and (b) the postponement of the distribution
is at least an additional five years. The regulations
proscribe criteria for accelerating benefit distributions
as well.
CORRECTING OPERATIONAL AND
DOCUMENTARY DEFECTS
The Internal Revenue Service (IRS) has issued
guidance to address situations where a deferred
compensation arrangement does not comply with
Section 409A (a “document failure”), or the deferred
compensation agreement is not administered in a
manner that complies with Section 409A (an
“operational failure”).
IRS Notice 2008-113 provides procedures for
correcting inadvertent failures to operate a plan or
agreement in compliance with Section 409A and the
Section 409A Rules. These procedures can be
followed to correct mistaken accelerations, mistaken
deferrals, and options with exercise prices mistakenly
set below its fair market value of the date of grant.
Utilization of these procedures trigger significant
reporting requirements.
IRS Notice 2010-6 provides procedures for
correcting provisions in plans and agreements that
inadvertently fail to comply with Section 409A and
Section 409A Rules. It clarifies that certain ambiguous
plan terms will not be treated as Section 409A
violations as long as the plan is not under examination
by the IRS. The Notice also provides specific
correction procedures for certain types of inadvertent
document failures. Most require plan amendments
and some require partial income inclusion if non-
compliant provisions will be triggered within one year
of the correction. These procedures are not available
to stock right plans or plans linked to other
nonqualified or qualified plans. Plan sponsors that
make corrections under this Notice are subject to
special reporting requirements.
IRS Notice 2010-80 modifies the guidance given by
Notice 2008-113 and Notice 2010-6 by clarifying
certain provisions of each notice, expanding the relief
provided by each notice and reducing reporting
requirements, and providing certain additional
methods of correction.
Proposed Section 409A regulations on income
inclusion provide additional correction options for
certain operational failures – but only for deferred
compensation that is not yet vested. In addition, there
may be general income principles that serve as basis
for corrections.
Notably, each approach provides opportunities for
voluntary corrections in only limited situations. Plan
sponsors are advised to take action regarding Section
409A compliance with respect to both existing plans
that should be reviewed for compliance and in drafting
new plans.

6. PattonBoggs.com Employment Law Insight 6
Please contact Stacey Grundman at 202.457.6178 or
sgrundman@pattonboggs.com with any questions or
concerns about the issues raised in this article.
EMPLOYMENT LAW UPDATE:
IMMIGRATION REFORM ON
THE HILL
Kristin D. Wells, Of Counsel
This month, all American employers should keep a
watchful eye on the debate on comprehensive
immigration reform. The expansive bill that has taken
center stage on the floor of the U.S. Senate, will
impact recruiting and hiring practices, benefits
packages and HR management processes for most
U.S. companies. The bill not only seeks to legalize 11
million undocumented U.S. residents, but also, for
example, requires electronic verification of the legal
status of all new hires and will determine whether
legalized immigrants can receive health care insurance
and other benefits. In addition, the bill will create
thousands of visas under new and expanded programs
for agricultural workers, lower-skilled guest workers
and high-skilled workers, and it makes important
changes to many existing visa categories, such as
additional recruitment requirements for all employers
seeking to hire a foreign national under the popular H-
1B visa program.
After a thorough review and amendment process in
the Senate Judiciary Committee, Senate Majority
Leader Harry Reid brought S. 744, the “Border
Security, Economic Opportunity and Immigration
Reform Act of 2013” to the Senate floor for three
weeks of debate in early June. He promises to hold a
final vote on the bill prior to the July 4th recess. In the
deliberative style of the Senate, debate will cover a
wide range of issues, but votes will only be held on a
limited number of amendments.
At present, the bipartisan Group of 7 in the House
continues to work on drafting a comprehensive bill.
As the Senate completes its work, pressure is building
on the House to move legislation and the Republican
caucus is beginning to respond. Under the leadership
of Judiciary Committee Chairman Bob Goodlatte (R-
VA), Republican members have introduced topic-
specific bills on core areas of reform–such as the E-
Verify employment verification system, agricultural
workers, and high-skilled workers. Two of these bills
were marked up this week, and the third is scheduled
for a markup next week. A substantial border security
bill passed the Homeland Security Committee last
month.
Speaker John Boehner and others in the House
leadership have promised their members that they will
not take up the Senate bill in the House, and that they
will only pass a bill in the House that enjoys the
support of the majority of the Republican caucus.
Exactly what bills will be passed on the floor and how
this process will be managed remains to be seen.
There is still a possibility that these bills could be
merged and conferenced with a Senate bill, if bills pass
in both chambers. Should a comprehensive
immigration reform bill pass Congress and be signed
into law, it will have a strong impact on how hiring
and benefits are handled by all American employers in
the foreseeable future. Policy advisors to the
Employment Law practice group at Patton Boggs
continue to monitor the progress of this important

7. PattonBoggs.com Employment Law Insight 7
legislation and provide periodic updates to clients and
other interested entities.
Please contact Kristin Wells at 202.457.6422 or
kwells@pattonboggs.com with any questions or
concerns.
U.S. CUSTOMS AND
BORDER PROTECTION
REVISES I-94 PROCESSES
Shaoul Aslan, Partner
Sam Mudrick, Associate
Foreign nationals entering the United States through
an air or sea port will most likely not be issued an I-94
Arrival-Departure Record, the small card normally
stapled into the passports of foreign nationals. The
U.S. Customs and Border Protection agency (CBP)
announced that, effective May 31, I-94 cards would no
longer be issued at air and sea ports of entry.
Instead, passports will be stamped with the date of
arrival and the date that an individual’s approved
status in the United States will expire. I-94s will now
only be available electronically by visiting the CBP
website, available here, and entering personal data and
entry information on the foreign national. Foreign
nationals will be then able to print a copy of the
electronic I-94. The following information on the
individual must be entered to obtain the I-94:
→ Family and First names
→ Date of Birth
→ Passport Number
→ Passport Country of Issuance
→ Date of Entry
→ Class of Admission
A printed copy of the electronic I-94 will still be
required for various reasons, such as completing the
employee’s Form I-9, or applying for a change to
immigration status, so a copy of an individual’s I-94
should be printed and retained upon entering the
United States.
Further, a printed copy of the I-94 ensures that the
date of status expiration matches the date stamped in
the passport. Inconsistent dates should immediately
be brought to the attention of an individual’s
immigration attorney to determine whether it is
necessary to contact CBP to correct the error. Failure
to do so could result in overstays and future
immigration problems.
Please contact Shaoul Aslan at 202.457.6095 or
saslan@pattonboggs.com or Sam Mudrick at
202.457.5218 or smudrick@pattonboggs.com with any
questions or concerns.

8. PattonBoggs.com Employment Law Insight 8
For more information, contact your Patton Boggs LLP attorney, the author of the included articles, or any of
the editors listed below.
DOUGLAS B. MISHKIN
202-457-6020
dmishkin@pattonboggs.com
SHAOUL ASLAN
202-457-6095
saslan@pattonboggs.com
CAROLINE DAVIDSON-HOOD
202-457-5257
cdavidsonhood@pattonboggs.com
STACEY GRUNDMAN
202-457-6178
sgrundman@pattonboggs.com
JENNIFER L. KEEFE
214-758-1562
jkeefe@pattonboggs.com
SAM MUDRICK
202-457-5218
smudrick@pattonboggs.com
KRISTIN D. WELLS
202-457-6422
kwells@pattonboggs.com
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