OFCCP Week In Review: March 30, 2020

• WHD Launched Families First Q&A Page
• USDOL Hosted a National Online Dialogue
• EARN Announced COVID-19 Resources
• NILG Gets OFCCP National Interest Clarifications
• EEOC Champions Anti-Discrimination Reminder
• Three New Opinion Letters on FLSA
• EEOC Posted COVID-19 Q&A Webinar
• Reasonable Accommodations and COVID-19
• WHD Announced More COVID-19 Guidance

Tuesday, March 24, 2020: WHD Launched Families First Q&A Page

In response to the “Families First Coronavirus Response Act,” passed last week, the Wage and Hour Division (WHD) released a “Questions and Answers” webpage to cover common questions employers (and employees) may have right out of the gate.

The Act includes paid sick leave under the Emergency Paid Sick Leave Act as well as expanded family medical leave per the Emergency Family and Medical Leave Expansion Act.

Most notably, NOT an April Fools joke, the regulations are effective April 1, 2020 – December 31, 2020 (Q1), and if your organization is in the private sector with more than 500 employees (defined in Q2), then the Acts do NOT apply (Q3).

The Q&A contains additional clarification on topics such as:

• Small business exemption
• Calculating part-time employee hours
• Overtime
• Calculating the rate of pay
• Overlap of the two regulations
• Employee rights

Please Note: This is a live document. On Tuesday, this list consisted of 14 questions, and at the time of this WIR publication, less than a week later, the Q&A is at 37 items.

Wednesday, March 25, 2020: USDOL Hosted a National Online Dialogue

The U.S. Department of Labor (USDOL) hosted a “national online dialogue” concerning COVID-19. This event was an opportunity for both employers and employees to provide the Department with feedback on the current resources available to understand the Families First Coronavirus Response Act (FFCRA). The open dialogue event allowed for additional ideas and suggestions to help the Department find ways to assist employers and employees in understanding their responsibilities and rights under the Families First Coronavirus Response Act (FFCRA). USDOL plans to structure additional compliance assistance guidance, resources, tools, and outreach approaches.

Wednesday, March 25, 2020: EARN Announced COVID-19 Resources

The Employer Assistance and Resource Network on Disability Inclusion (EARN) released a Special Issue of its monthly newsletter focused on COVID-19 resources.

EARN is funded by the U.S. Department of Labor’s Office of Disability Employment Policy. The Special Issue provides resources than can assist employers and others to understand the intersection between the current pandemic and disability employment policies and practices.

Featured Resources

• “Disabled People Have Worked Remotely for Years, and They’ve got Advice for You and Your Bosses,” an article in the Washington Post
• SHRM: Latest COVID-19 Resources
• “Working Remotely During COVID-19: Your Mental Health and Well-Being,” a guide provided by the Center for Workplace Health

Save the Date

EARN will host a webinar, “The ADA at Work: Considerations for COVID-19,” on April 1, 2020.

Wednesday, March 25, 2020: NILG Gets OFCCP National Interest Clarifications

In response to last week’s National Interest Exemption, the National Industry Liaison Group (NILG) received clarification on OFCCP operations during the COVID-19 pandemic. Specifically, the OFCCP will institute the following protocols:

• Grant an automatic 30-day extension for submission of AAPs after receipt of an audit Scheduling Letter
• Grant an automatic additional 30-day extension to contractors which submit their written AAP narrative within 60 days of receipt of an audit Scheduling Letter (i.e., provide another 30 days for submission of all data reports and analyses called for in either the “Itemized Listing” attached to Supply and Service audit Scheduling Letters or in the audit letter itself in the case of Construction Company and Section 503 Focused Review audit Scheduling Letters)
• Grant an automatic extension of 14 days, and more commonly of 30 days, for contractor response to information requests, with the opportunity for further extensions as needed
• Conduct 503 Focused Review on-sites via video or phone conference only until contractors begin resuming normal operations.

The NILG understands that OFCCP will grant further extensions to contractors whose ability to respond remains affected by the COVID-19 emergency, and such requests will be “liberally granted.” OFCCP and the NILG recommend that contractors which believe OFCCP is not taking the pandemic emergency into sufficient account, either in general or concerning a specific audit, contact OFCCP Ombudsperson, Marcus Stergio at Stergio.Marcus@dol.gov or 202-693-1174.

Contractors concerned about the inability to receive an expected Scheduling Letter via mail may provide an email address to the applicable Regional Director, with a copy to Deputy Director Patricia Davidson at Davidson.Patricia@dol.gov. The OFCCP assures the NILG that contractors providing this information will receive the Scheduling Letters via email in addition to the mailed copy.

Wednesday, March 25, 2020: EEOC Champions Anti-Discrimination Reminder

EEOC Chair, Janet Dhillon, released a statement reminding employers that amid the challenges of the COVID-19 pandemic, the anti-discrimination laws that the Equal Employment Opportunity Commission (EEOC) enforces are “as vital as ever.”

Dhillon reported that “there have been reports of mistreatment and harassment of Asian-Americans and other people of Asian descent. In the workplace, these actions can result in discrimination on the basis of national origin.”

The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior. “Our collective efforts to create respectful workplaces for all our nation’s workers, even during these trying times, will enable us to emerge from this crisis stronger and more united,” Dhillon stated.

Additional information about national origin and race discrimination can be found by following the links below:

• National Origin Discrimination
• Race Discrimination

Thursday, March 26, 2020: Three New Opinion Letters on FLSA

The U.S. Department of Labor’s Wage and Hour Division (WHD) issued three new Opinion Letters to provide further clarity on the Department’s Final Rule on the Fair Labor Standards Act (FLSA) regular rate requirements (see OFCCP Week In Review: December 16, 2019). The Final Rule focuses primarily on clarifying whether certain kinds of benefits or perks and other miscellaneous payments must be included in the “regular rate.”

The New Opinion Letters

• FLSA2020-3: Addresses excludability of longevity payments from the regular rate of pay.
• FLSA2020-4: Addresses excludability of referral bonuses from the regular rate of pay.
• FLSA2020-5: Addresses excludability of an employer’s contributions to a group-term life insurance policy from the regular rate of pay.

All WHD Opinion Letters are located on the “Opinion Letter Search” page.

Friday, March 27, 2020: EEOC Posted COVID-19 Q&A Webinar

The Equal Employment Opportunity Commission (EEOC) announced Monday it would accept questions from the general public all week and then record a webinar addressing the issues. The pre-recorded, 42-minute webinar is now available via YouTube on the EEOC webpage.

Carol Miaskoff, Associate Legal Counsel of the EEOC, Sharon Rennert, Senior Attorney Advisor for ADA & Gina, and Jeanne Goldberg, Acting Assistant Legal Counsel for ADA and GINA hosted the webinar. The webinar addresses twenty-two (of nearly 500 submitted) questions pertaining to EEO laws and COVID-19.

The webinar supplements the previously published COVID-19 resources:

• “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19“
• “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act“

Friday, March 27, 2020: Reasonable Accommodations and COVID-19

The Job Accommodation Network (JAN) published a blog, “The ADA and Managing Reasonable Accommodation Requests from Employees with Disabilities in Response to COVID-19.” The blog provides compliance assistance on the Americans with Disabilities Act (ADA) and practical strategies for employers to accommodate individuals with disabilities during the COVID-19 public health disaster.

Friday, March 27, 2020: WHD Announced More COVID-19 Guidance

The U.S. Department of Labor’s (USDOL) Wage and Hour Division announced more guidance on how employers and employees will be able to take advantage of the protections and relief offered by the Families First Coronavirus Response Act (FFCRA), which becomes effective April 1, 2020.

Available Resources

• Fact Sheet for Employees
• Fact Sheet for Employers
• Questions and Answers (see Tuesday story above)
• Poster for federal workers
• Poster for non-federal employees
  Please Note: These posters will fulfill notice requirements for employers obligated to inform employees about their rights under this new law.

• Questions and Answers about posting requirements
• Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy

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.