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Illinois Proposes New Pregnancy Discrimination Rules

Proposed requirements may amend the Illinois Pregnancy Fairness Law, which took effect January 1, 2015.

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The Illinois Department of Human Rights (IDHR) proposed new pregnancy discrimination and accommodation rules that will add additional requirements and clarifications to the Illinois Pregnancy Fairness Law. Specifically, the proposed amendments affect the areas of:

  • Reasonable accommodation
  • Fringe benefits
  • Medical documentation requests

The IDHR expects the final rules will be issued by mid-October 2015.

Pregnancy-Related Conditions and Required Reasonable Accommodations in Illinois

Pregnancy-related conditions may be temporary and do not need to meet the definition of disability under the Americans with Disabilities Act (ADA) or be a serious health condition under the Family and Medical Leave Act (FMLA). Pregnancy-related conditions could include:

  • Gestational diabetes
  • Preeclampsia
  • Post-partum depression
  • Miscarriage
  • Hypothyroidism

The proposed rules require Illinois employers to engage in the interactive process with current employees and applicants with conditions related to their pregnancy and accommodate pregnancy-related conditions as if they were disabilities currently accommodated under the ADA.

Some examples of reasonable accommodations are:

  • Modified work schedule
  • Modified job structure or job assignment
  • Temporary transfer to a different position
  • More frequent or longer breaks
  • Assistance with manual labor
  • Light duty
  • Making existing facilities and worksites readily accessible
  • Time off to recover from conditions related to childbirth

However, an employer doesn’t need to offer an accommodation if the accommodation would result in ‘undue hardship’ to the employer.

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What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

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Fringe Benefits

The proposed rules require that employers continue to provide an employee with their fringe benefits, including health insurance, throughout the accommodation period. This includes employees who are placed on modified work schedules or are working part time.

Request for Medical Documentation

Under the proposed rules, employers are allowed to request medical documentation from a healthcare provider if an employee requests accommodation for a pregnancy-related condition. However, employers may only request the information if the:

  • Employer normally requests medical documentation for disability-related accommodation.
  • Requested accommodation would impact general operations of the business.
  • Requested information is not ‘known’ or ‘readily apparent’ to the employer.

For more information on reasonable accommodation and pregnancy, click here.

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Medical Marijuana, the ADA, and Hiring/Firing

Is the use of medical marijuana a justified reason for termination? Or is that a violation of the Americans with Disabilities Act? With the legalization of medical marijuana use in several states, drug screenings during the hiring process just got trickier.

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EEOC vs The Pines of Clarkston

Jamie Holden, a licensed practical nurse, applied for a position as nursing administrator with The Pines of Clarkston, an assisted living facility, in Michigan. Holden was offered the position contingent on the results of a routine drug screen. The results of the drug screen revealed high levels of marijuana. Holden met with her supervisors to explain that she uses medical marijuana for her epilepsy. After being questioned about her epilepsy, Holden was told that they did not believe she could perform the job. A few days later Holden was terminated for violating the company’s drug-free workplace policy.

Holden filed suit with the Equal Employment Opportunity Commission (EEOC) and maintains that her termination was not related to her use of medical marijuana, but rather that she suffers from epilepsy – a violation of the Americans with Disabilities Act (ADA) and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). The Pines maintains that Holden was fired because she violated their zero tolerance drug policy by using medical marijuana.

The Pines of Clarkston agreed to a four-year consent decree that resolves the dispute without admitting guilt. The company also agreed to pay $42,500 and institute policies regarding discrimination and training on the ADA.

Tips for Employers

This case got sticky because the candidate revealed a medical condition covered by ADA protections. With medical marijuana use expected to skyrocket, drug tests on their own may no longer be a reliable screening process and, in fact, may open a can of worms in terms of medical conditions. More court cases at the state and federal level eventually will shape employment drug-screening policies. In the meantime, when failing to hire a candidate or terminating an employee with a medical condition – whether the employee uses medical marijuana or not – employers must never make decisions based on the protected medical condition.

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What Is the Americans with Disabilities Act?

The ADA became law in 1990 and bans discrimination against individuals with disabilities in all areas of life – employment, transportation, public accommodation, communications, and governmental activities.

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Telecommuting isn’t Always a Reasonable Accommodation

If your job is highly interactive, telecommuting may not qualify as a reasonable accommodation.

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The full U.S. Sixth Circuit Court recently overturned a disability discrimination case brought forth by the Equal Employment Opportunity Commission (EEOC) against Ford Motor Co.

EEOC vs. Ford Motor Company

Jane Harris worked as a resale steel buyer for Ford Motor Company from 2003 to 2009. Harris suffered from Irritable Bowel Syndrome (IBS), which was often debilitating and caused numerous absences. In 2008, Harris missed an average of 1.5 days per week and in 2009, was absent more than she was present. Harris’s frequent absenteeism started to affect her job performance. Her supervisors tried working with her through the interactive process to find a suitable solution.

Harris was offered several accommodations, including the opportunity to work a flex-time schedule and telecommute as needed on a trial basis. Yet, her performance continued to deteriorate. She began to make mistakes and miss deadlines. Even though she was unable to meet her performance goals, Harris requested that she be allowed to telecommute up to four days per week. Harris’s supervisors did not grant her requested accommodation, but they did offer a few alternative accommodations such as; moving her desk closer to the restroom or looking for a job within the company that was better suited to telecommuting. Harris turned down the alternative accommodations. Her supervisors told her they would be willing to talk to her again if she could identify another accommodation. Harris claimed the denial of her request violated the Americans with Disabilities Act (ADA) and filed a discrimination charge with the EEOC. She was eventually terminated from her position.

When Telecommuting is Unreasonable

On initial review, a panel of three Sixth Circuit judges agreed with the EEOC and ruled that allowing Harris to work from home was a reasonable accommodation for her disability. This decision caused several state Chambers of Commerce to ask the full Sixth Circuit to re-evaluate the panel’s ruling—arguing the decision gave employees the power to decide when and where they work. The full Sixth Circuit agreed to rehear the case and eventually sided with Ford. The Court’s decision focused on the fact that Harris’s highly-interactive position was not conducive to extensive telecommuting. Harris herself admitted that at least eight of her ten job responsibilities could not be performed effectively from home. Although Ford allowed employees with certain positions to telecommute on a more regular basis, it had limits around telecommuting for resale buyers.

Under the ADA companies are required to provide reasonable accommodations to qualified employees with disabilities, if the employee is able to perform the essential functions of the job. The Court held that consistent, predictable, on-site attendance is ‘essential’ to be qualified for jobs requiring team work and interactive behaviors. Harris’s position had such requirements. The Court decided that Harris was not a ‘qualified’ individual for reasonable accommodation because “regular and consistent on-site attendance was essential for Harris’s position, and Harris’s repeated absences made her unable to perform the essential functions of a resale buyer.”

Suggestions for Employers

Employers should actively participate in the interactive process with the employee. Evaluate the specific circumstances of the request as well as the essential functions of the employee’s job to determine whether it can be completed remotely. If the position cannot be completed remotely, consider other reasonable accommodations that would allow the employee to successfully perform their job. The ADA requires employers to evaluate each accommodation request on its specific circumstances as well as on a case-by-case basis.

What is the Interactive Process for Reasonable Accommodation Requests?

The interactive process is the collaborative effort between the employer and employee to determine if the employee is able to perform required job functions and if the employer can make a reasonable accommodation for the employee’s disability.

If your company uses the interactive process to find reasonable accommodation for employees, document the process to demonstrate your good-faith effort to accommodate an employee’s disability.

What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).

Of the roughly 97,000 discrimination charges that the EEOC receives every year, nearly 26 percent are related to claims of disability discrimination.

For more information on the ADA or reasonable accommodation, please check out our other blogs here and here.

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Workplace Wellness Programs Finally Get Some Clarification

After a great deal of confusion for employers and health insurers, the Equal Employment Opportunity Commission (EEOC) has finally agreed to proceed with regulations that would clarify how workplace wellness programs can adhere to the requirements of both the Affordable Care Act (ACA) and the Americans with Disabilities Act (ADA).

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The EEOC voted to send a Notice of Proposed Rulemaking (NPRM) to the federal Office of Management and Budget (OMB) for clearance.

According to the EEOC:

“This proposed rule, which was approved by a bipartisan vote, would amend the regulations implementing the equal employment provisions of the ADA to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through group health plans.”

The EEOC is concerned that some workplace wellness programs, which are supposed to be voluntary, violate the ADA or the Genetic Information Nondiscrimination Act (GINA) by discriminating against employees based on the condition of their health.

The ADA prohibits employers from discriminating against employees based on health status, but they are allowed to ask employees details about their health and conduct medical exams as long as the information requested is job-related or in connection with a voluntary wellness program. The ACA encourages employers to put programs in place that give employees incentives (both penalties and rewards) to improve their health by losing weight, reducing stress, or quitting smoking.

Demand for Clarification

The EEOC has received a significant amount of criticism from many U.S. companies, health insurers and other organizations for challenging wellness programs, designed to be compliant with the rules established under the ACA, by claiming that these programs violate the ADA. Actions that have left employers struggling with guidance that has been inconsistent and vague.

Honeywell vs. The Equal Employment Opportunity Commission

Last October the EEOC requested an injunction against Honeywell International Inc., over their health screening policy that requires medical testing for employees and spouses–alleging that their wellness program violates discrimination laws because it imposes monetary fines of up to $4,000 on employees who fail to complete the testing. Honeywell’s wellness program screens workers for blood pressure, cholesterol, blood-sugar levels, waist circumference and nicotine.

Honeywell maintains the policy promotes employee wellbeing and reduces healthcare premiums for healthy employees.

“We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The District Judge stated, “What is better public policy and who is likely to succeed are not measures this court is prepared to decide…There are a number of fascinating issues for debate at a later time.” The case has been closed.

Flambeau and Orion Energy were also tagged for wellness programs that include biometric screenings.

What Happens Next?

Once the OMB approves the proposed rule, it will be published in the Federal Register for a 60-day public notice and comment period. Once the comment period ends, the agency reviews public comments received and may revise the rule.

The agency then goes through its final internal review process. Once the final rule has been published, an agency usually must wait at least 30 days before implementing it.

The Role of the EEOC

The EEOC enforces federal antidiscrimination laws like the ADA, the Equal Employment Opportunity Act, and GINA. They investigate charges of discrimination against employers and have the authority to file lawsuits “to protect the rights of individuals and the interests of the public.”

Notice of Proposed Rulemaking (NPRM)

A NPRM is a public notice issued by law when one of the independent agencies of the United States government wishes to add, remove, or change a rule or regulation as part of the rulemaking process.

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Employee Fired for Postpartum Depression

An employee who provided customer assistance to healthcare patients and pharmacists soon found herself in need of an advocate for her own disability case.

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A Reimbursement Case Advocate, Meron Debru, informed her employer (The Lash Group Inc.) of her pregnancy and requested short-term disability leave for the birth of her child. Her doctor was concerned that Debru was suffering from postpartum depression and did not release her to return to work, and for nearly five months after her short-term disability ended, she was unable to work because of the postpartum depression, which is considered a disability related to childbirth and is protected by the Americans with Disability Act (ADA).

The company filled Debru’s position about three months into her leave and sent her a letter of termination, stating that she had exhausted her FMLA leave and because she had taken more than six months’ leave, which was not true. Debru protested to the human resources manager, and the company sent a new letter stating that she had exhausted her allowable FMLA leave, but that she could apply for other open positions with the company.

She was released to return to work by her physician and was forced to compete for vacant positions. After applying for three positions for which she was qualified, the company still had not hired her, and they once again formally terminated her.

The EEOC took on Debru’s case (EEOC v. The Lash Group) and won. They proved that the company had refused to provide a reasonable accommodation to an employee with postpartum depression and instead fired her because of her disability.

(To be clear, the ADA does not classify pregnancy as a disability under the ADA, but any pregnancy-related disabilities, such as postpartum depression, are considered disabilities for which employers must provide reasonable accommodation).

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Lessons Learned from EEOC v. The Lash Group

  • Employers must provide reasonable accommodation to women who experience pregnancy-related disabilities.
  • Reasonable accommodation can include the extension of unpaid leave or transferring the employee to a vacant position for which she is qualified.
  • Forcing an employee to try to find a new position within the company on her own does not meet an employer’s obligation to provide a reasonable accommodation.
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Case Outcomes from EEOC v. The Lash Group

Monetary fine: $75,000

Employer must:

  • Provide reasonable accommodation going forward.
  • Revise its family and medical leave and short-term disability benefits policies and procedures to address reasonable accommodations.
  • Notify employees that they may be entitled to a reasonable accommodation (including unpaid leave) and how to request such an accommodation.
  • Provide training on the ADA and reasonable accommodations to human resources personnel, leave coordinators and managers.
  • Report to the EEOC on how it handles future reasonable accommodation requests.
  • Post a notice regarding the resolution of this lawsuit.

What is Postpartum Depression?

The symptoms of postpartum depression are more intense than the “baby blues” that many new mothers experience. Approximately 15% of all new mothers experience a more intense sort of “baby blues” known as postpartum depression whose symptoms may include:

  • Loss of appetite
  • Insomnia
  • Intense irritability and anger
  • Overwhelming fatigue
  • Loss of interest in sex
  • Lack of joy in life
  • Feelings of shame, guilt or inadequacy
  • Severe mood swings
  • Difficulty bonding with the baby
  • Withdrawal from family and friends
  • Thoughts of harming self or baby

Untreated, postpartum depression may last for many months or longer.

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The Interactive Process and Reasonable Accommodation

After an employer receives a request for reasonable accommodation from an employee, both parties need to participate in the interactive process to discover what type of accommodation, if any, the employer needs to provide. The Equal Employment Opportunity Commission (EEOC) may cite employers who skip the interactive process for failing to provide reasonable accommodation, resulting in a discrimination suit.

Medical Disability Request for Reasonable Accommodation

Employed as a hairdresser, Debra Kauffman pushed nursing home residents in wheelchairs from their rooms to the beauty shop as part of her normal job duties (Kauffman v. Peterson Health Care). After Kauffman underwent surgery, her doctor advised her to avoid pushing more than 20 pounds. Because the residents weighed much more than the doctor’s suggested work restriction, Kauffman informed her supervisor of the work restrictions and asked if someone else could wheel the residents to the beauty shop for her.

Kauffman’s employer, Peterson Health Care, claimed they would need to hire somebody to transport residents to and from the beauty shop for Kauffman and that would constitute an undue hardship for the business.

Her supervisor stated, “We just don’t allow people to work with restrictions, and you have a restriction on here…[A]s long as you’ve got the restriction we can’t employ you.”

Kauffman resigned and filed a claim under the Americans with Disabilities Act (ADA).

The Seventh Circuit Court of Appeals noted that staff members provided assistance to another hairdresser by wheeling residents to the beauty shop after Kauffman’s resignation – with no evidence that wheelchair assistance created an undue hardship for the employer or reduced the quality of care to other residents.

The Court found that Petersen Health Care could not ignore Kauffman’s initial request for accommodation, stating that the employer is required to engage in an interactive process to determine the type of accommodation that would be appropriate.

The case will proceed to a jury trial.

What is the Interactive Process for Reasonable Accommodation Requests?

The interactive process is the collaborative effort between the employer and employee to determine if the employee is able to perform required job functions and if the employer can make a reasonable accommodation for the employee’s disability.

If your company uses the interactive process to find reasonable accommodation for employees, document the process to demonstrate your good-faith effort to accommodate an employee’s disability.

What is Reasonable Accommodation?

Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

What is the ADA?

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).

Of the roughly 97,000 discrimination charges that the EEOC receives every year, nearly 26 percent are related to claims of disability discrimination.

For more information on the ADA or reasonable accommodation, please check out our other blogs here and here.


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Illinois Pregnancy Accommodation Amendments

The State of Illinois enacted Public Act 098-1050 that requires Illinois employers to provide reasonable accommodations to employees with conditions related to pregnancy or childbirth. The law, known as the Illinois Pregnancy Accommodation Amendments, modify the Illinois Human Rights Act and takes effect January 1, 2015.

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Although U.S. employers are required by the Americans with Disabilities Act (ADA) to accommodate people with disabilities, Illinois legislators were concerned that too many employers did not extend the same protections to pregnant workers.

Supporters of the Illinois Pregnancy Accommodation Amendments claimed that previous Illinois workplace laws didn’t go far enough to protect pregnant workers who often need to take unpaid leave during pregnancy or – in some cases – who are fired.

What are Reasonable Accommodations for Pregnant Workers in Illinois?

Reasonable accommodations allow pregnant workers to continue work without endangering the employee, the employee’s pregnancy, or the pregnant worker’s employment status and long-term job opportunities.

An employer may be able to forgo participation with reasonable accommodation requests if they can demonstrate that the accommodation would impose an “undue hardship on the ordinary operation of the business”.

Examples of Reasonable Accommodation for Pregnant Workers
  • Assistance with load lifting
  • Provision of seating near the work area
  • Allowance of more frequent rest and bathroom breaks
  • Private non-bathroom space for expressing breast milk and breastfeeding
  • Part-time or modified work schedules
  • Illinois private employers with 15 or more workers in Illinois during at least 20 weeks each year
  • All governmental employers
  • Companies with public contracts

Which Illinois Employers Are Covered by the Illinois Pregnancy Accommodation Amendments?

  • Illinois private employers with 15 or more workers in Illinois during at least 20 weeks each year
  • All governmental employers
  • Companies with public contracts

Illinois Pregnancy Rights Notice Requirement

All Illinois workplaces are required to display a new posting that contains information on pregnant worker’s rights. The posting is required in English, but employers may also post a Spanish version, but the Spanish version is not required.

The posting is included as part of the GovDocs Illinois Posting Compliance Package along with other postings required for Illinois workplaces:

  • Notice to Workers About Unemployment Insurance Benefits
  • Notice to Employees (Workers’ Compensation)
  • Notice to Employers and Employees (Minimum Wage)
  • Illinois Pregnancy Accommodation
  • Your Rights Under Illinois Employment Laws
  • Pay Day Notice
  • No Smoking Poster

GovDocs customers can save 20% off the purchase of all Illinois labor law posters by using coupon code BLOG20.

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Reasonable Accommodation and Pregnancy. They should go together, shouldn’t they?

UPDATE (March 25, 2015):

The Supreme Court reinstated the pregnancy discrimination case against UPS and sent it back to the lower court. In a 6-3 decision, the Supreme Court found that Peggy Young had the right to sue UPS for pregnancy discrimination for refusing to accommodate her with light duty after her doctor ordered her not to lift more than twenty pounds while pregnant.

The Pregnancy Discrimination Act states that women “affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.” The Supreme Court said Young’s case depended on how UPS could answer one question: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

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75% of American women will be pregnant and working at some point during their life, and nearly 90% of U.S. adults either have or want to have children. So why are there still so many claims of discrimination against pregnant women in the workplace?

Young vs. United Parcel Service (UPS)

Peggy Young was a delivery driver who worked for UPS. When Young became pregnant, her doctor told her not to lift more than twenty pounds. However, the UPS employee policy requires employees to be able to lift up to seventy pounds. Young asked to be placed on light duty for the duration of her pregnancy. UPS denied her request because her pregnancy wasn’t a disability or an on-the-job injury. UPS policy states that employees who are injured on-the-job, are disabled, or have lost their commercial driver’s license qualify for light duty. Since Young’s condition didn’t fall into any of those three categories, she was not eligible. Young was placed on unpaid leave and lost her medical benefits.

Young sued UPS under the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA), claiming she had been the victim of gender- and disability-based discrimination. UPS maintains that they were not required to offer accommodations under the ADA because her pregnancy did not equate to a disability. UPS states that the point of the PDA is to make sure pregnant women are “treated equally, not better, than fellow employees.”

Two lower courts have already ruled in favor of UPS and now the case has been brought before the Supreme Court. It could take months for the Supreme Court to make its decision.

In the meantime UPS has said that they have voluntarily revised their policy to offer light duty to pregnant workers. The revised policy will be in effect starting in January 2015.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. This amendment states that women “affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

Under the PDA:

“If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.”

Reasonable Accommodation

Reasonable accommodation is defined by the U.S. Department of Justice as “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”

Americans with Disabilities Act (ADA)

The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).


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