The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
April 10, 2015: FAR Council Published Interim Rule re OFCCP LGBT Rule. See 80 Federal Register 15609 by clicking on this link: Interim Rule. The Comment period ends June 6, 2015. The Rule proposes to cure OFCCP’s December 9, 2015 LGBT Final Rule by defining both the terms “sexual orientation” and “gender identity” and proposes to do so by adopting OFCCP’s FAQ definitions of both terms (which FAQs do not have the binding force or effect of law). NOTE: OFCCP Rules are “double-published” in both OFCCP’s Rules at 41 CFR and also in the Federal Acquisition Regulations (“FARs”) applicable to all federal contracting. The FAR Council is the big three federal agencies accounting for most of the federal government’s procurement of goods and services: Government Services Administration, DOD and NASA. Federal Contractors accused of discriminating unlawfully on the basis of sexual orientation and/or gender identity should check with legal counsel as to the legally effective date of OFCCP’s ability to hold contractors legally accountable for such discrimination and whether it is enforceable absent Congressional legislation.
April 14, 2015: Discrimination On the Basis of Sex comment period ends. This was the last day for members of the public to submit comments to OFCCP regarding its January 30, 2015 Notice of Proposed Rulemaking regarding “Discrimination on the Basis of Sex”. You may access those comments OFCCP received at this link: NPRM Comments. OFCCP hopes to publish a FINAL Rule by the end of 2015. That date seems optimistic, however, given the number of major Rules OFCCP has in the offing and has additionally ambitiously promised. Winter 2016 seems more likely.
April 20, 2015: NPRM issued by EEOC on Wellness Programs. The EEOC today issued its long-awaited “Wellness Program” Notice of Proposed Rulemaking amending Title I (Employment) of the Americans with Disabilities Act titled: “Amendments to Regulations under the Americans with Disabilities Act.” Significantly, the OFCCP did not either join the EEOC’s NPRM or publish its own Rule amending § 503 of The Rehabilitation Act of 1973.
Punchline: OFCCP will thus have to exercise its prosecutorial discretion NOT to hold federal contractors liable pursuant to § 503 for Wellness Programs which will meet muster under the amended ADA.
Background: Both the ADA and § 503 prohibit employers/contractors from making disability-related inquiries or requiring medical examinations of incumbent employees, unless voluntary. The EEOC’s NPRM proposes 5 conditions which will provide a safe harbor from prosecution pursuant to the ADA because of any incentive the employer may offer employees to follow Wellness Program requirements.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Fox Report, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.
