OFCCP Developments During the COVID-19 Pandemic
Since the COVID-19 pandemic started materially affecting contractors in March, the Office of Federal Contract Compliance Programs (“OFCCP”) has continued its practice of conducting audits, providing resources and assistance, and enforcing affirmative action and non-discrimination requirements, but in different and more limited mediums.
OFCCP continues to conduct audits, but in lieu of physical site visits, OFCCP employs WebEx, Skype, and phone to conduct interviews and complete evaluations. OFCCP also states that is has been providing extensions where it is difficult to reach employees remotely. OFCCP has continued to provide support through its website via Help Desk, but OFCCP has not been accepting walk-ins at its offices.
Furthermore, OFCCP issued a National Interest Exemption memorandum (“NIE”) granting an exemption and waiver to certain affirmative action obligations of supply and service and construction contracts providing COVID-19 relief and entered into from March 17, 2020 to June 17, 2020. The practical effect of the NIE generally only falls on companies that have not historically been covered by OFCCP regulations but have entered into contracts or subcontracts with federal agencies to provide services, supplies, or construction related to COVID-19 relief. Contractors that qualify under the NIE are still required to abide by the non-discrimination and non-retaliation obligations under OFCCP’s law for both applicants and employees, but are exempt from some affirmative action requirements, including preparing and maintaining affirmative action programs.
On July 1, 2020, OFCCP issued a final rule that made clear OFCCP lacked authority to enforce affirmative action obligations against health care providers solely because they participate in the military health insurance program Tricare, which provides health benefits to uniformed service members, retirees and their families. OFCCP first asserted authority over Tricare providers in litigation with a Florida hospital in 2007, but in 2014 issued a moratorium on enforcement actions against Tricare providers. OFCCP will continue to exercise its authority over Tricare providers with separate federal contracts or subcontracts that are subject to the agency’s rules and regulations.
An additional development that was quickly overshadowed by all things COVID-19 was the announcement that OFCCP Director Craig Leen is leaving OFCCP to take a position as Inspector General at the Office of Personnel Management. There is no word yet on who may replace him as OFCCP Director.
For more information on OFCCP and your affirmative action obligations, please contact Stephanie Scheck, Amy Conway, Carroll Wright, or the Stinson contact with whom you regularly work.