OFCCP Week In Review: April 13, 2020

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:

• OSHA Issued COVID-19 Risk Reduction Poster
• Presidential Proclamation of World Autism Day
• The Big Reveal! OFCCP Audit Scheduling Letters Approved
  • Bonus Feature with Deep Dive Into Scheduling Letters
• OSHA Expanded Facepiece Guidance
• OSHA Champions Anti-Retaliation for Reporting Unsafe Working Conditions
• USERRA and COVID-19
• EEOC Updated It’s COVID-19 Assistance
• OFCCP Request for Comments on Its Complaint Form
• WHD Corrections to FFCRA
• NLRB Now Delays Final Rule Effective Date
• NILG Conference Cancelled
• USDOL Announced Guidance on Unemployment Compensation
• OSHA Issued Guidance on COVID-19 Reporting

Monday, April 6, 2020: OSHA Issued COVID-19 Risk Reduction Poster

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced it has issued a new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus.

The poster highlights ten infection prevention measures every employer can implement to protect workers’ safety and health during the coronavirus pandemic. Safety measures include:

• encouraging sick workers to stay home,
• establishing flexible worksites and staggered work shifts,
• discouraging workers from using other workers’ phones, desks, and other work equipment,
• using Environmental Protection Agency-approved cleaning chemicals with label claims against the coronavirus.

The new poster is available for download in English or Spanish.

Visit the OSHA’s Publications webpage for other useful workplace safety information.

Tuesday, April 7, 2020: Presidential Proclamation of World Autism Day

On behalf of the United States, President Trump published a Proclamation in the Federal Register joining the country in a day of global awareness of autism. The Proclamation reports that approximately 1 in every 59 American children lives with Autism Spectrum Disorder (ASD). That means that nearly 500,000 of our Nation’s young people who turn 18 over the next decade will enter adulthood with ASD.

President Trump proclaimed, “…by virtue of the authority vested in me by the Constitution and the laws of the United States, [I] do hereby proclaim April 2, 2020, as World Autism Awareness Day.  I call upon all Americans to learn more about the signs of autism to improve early diagnosis, understand the challenges faced by individuals with autism, and find ways to support those with autism and their families.”

DirectEmployers Supports Autism Awareness

Join the DE webinar on Tuesday, April 14, 2020, as Haley Moss, Attorney and Neurodiversity Activist hosts “Incorporating Neurodiversity into the Workplace.”

Tuesday, April 7, 2020: The Big Reveal! OFCCP Audit Scheduling Letters Approved

The Office of Management and Budget (OMB) has approved revised Office of Federal Contract Compliance Programs (OFCCP) compliance evaluation Scheduling Letters for Supply and Service contractors, including Compliance Checks and Section 503 Focused Reviews. OMB also approved a first-ever OFCCP VEVRAA Focused Review Scheduling Letter and new Scheduling Letters for Construction Compliance Checks and Federally Assisted Construction Compliance Checks.

We reported last April that the revised Scheduling Letters were available for public comment, and several of the proposed Letters had included significant changes. DE compiled Member feedback and supplied to OFCCP for consideration. Our comments were well received and as a result, the newly approved audit Scheduling Letters are largely unchanged as to substance and contain merely grammatical revisions. OMB has approved all six letters for OFCCP’s use for three years, expiring April 30, 2023.

For a detailed breakdown of the Letters, DE’s comments, and final outcomes, see our bonus feature.

Wednesday, April 8, 2020: OSHA Expanded Facepiece Guidance

Federal OSHA announced it had published expanded temporary guidance to its earlier March 14, 2020 memorandum regarding supply shortages of N95s and other filtering facepiece respirators (FFRs) due to the COVID-19 pandemic. This expanded guidance applies to all workplaces OSHA covers where OSHA Rules require respirator use. Of greatest note is that OSHA has instructed its Field Offices to exercise enforcement discretion concerning annual fit-testing requirements, as long as any employer in question has made good-faith efforts to comply with the requirements of the Respiratory Protection standard and to follow the steps OSHA outlined in the March 14, 2020, memorandum.

Wednesday, April 8, 2020: OSHA Champions Anti-Retaliation for Reporting Unsafe Working Conditions

Federal OSHA announced a reminder to employers that it is illegal to retaliate against employees because they report unsafe and/or unhealthful working conditions during the coronavirus pandemic. Unlawful acts of retaliation may include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.

Employees have the right to file a whistleblower complaint online with OSHA if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws the agency enforces.

OSHA’s Whistleblower Protection Program webpage provides resources on employee rights, including fact sheets on whistleblower protections for employees in various industries and frequently asked questions.

Thursday, April 9, 2020: USERRA and COVID-19

USDOL Veterans’ Employment and Training Service issued a factsheet outlining guidance on the impact of COVID-19 on the Uniformed Services Employment and Reemployment Rights Act (USERRA).

The factsheet does not report any new USERRA rights or obligations in light of COVID-19, but instead addresses some scenarios that might arise from the application of USERRA during the pandemic.

Thursday, April 9, 2020: EEOC Updated It’s COVID-19 Assistance

The Equal Employment Opportunity Commission (EEOC) announced it has updated and expanded its previously published technical assistance publication titled “What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This live document expanded from its original eight Q&As to a much more extensive list of twenty questions and answers covering the following topics:

1. Disability-Related Inquiries and Medical Exams
2. Confidentiality of Medical Information
3. Hiring and Onboarding
4. Reasonable Accommodation
5. Pandemic-Related Harassment due to National Origin, Race, or other Protected Characteristics
6. Furloughs ad Layoffs

Thursday, April 9, 2020: OFCCP Request for Comments on Its Complaint Form

OFCCP requested Comments on its current Complaint form pursuant to the Paperwork Reduction Act of 1995. This means that OFCCP’s current Complaint form is about to hit the end of OMB’s three-year authorized use runway. The Office of Management and Budget (OMB), the administrative arm of The White House regulating all federal Executive Branch agencies, will receive comments and review them, per the usual, as part of its every three-year evaluation of all paperwork affecting 10 or more members of the public. OMB will then authorize OFCCP to continue to use the form, or will order OFCCP to modify the form in some fashion.

Title of Collection

Complaint Involving Employment Discrimination by a Federal Contractor or Subcontractor.

The Scoop

Neither Applicants nor employees may bring a lawsuit against a federal Government contractor or subcontractor for noncompliance with the statutes and implementing Rules OFCCP enforces. However, any applicant for employment with, or employee of, a covered federal Government contractor or subcontractor, may file a complaint with OFCCP alleging unlawful discrimination or a failure to comply with affirmative action obligations. This is done via OFCCP’s current “Form CC-4.”

Comments

OMB will consider all written comments it receives on or before May 11, 2020.

Friday, April 10, 2020: WHD Corrections to FFCRA

The Wage and Hour Division (WHD) issued a correction and a correcting amendment to its Temporary Rule we reported on last week.

What Changed?

The Temporary Rule contained an incorrect calculation of hours worked in a particular scenario (see Federal Register page 19329, the first column). WHD revised its prior calculation from “7.5 hours” to “6.5 hours.” In addition, WHD made eight other changes throughout Part 826 of its Rule implementing the Families First Coronavirus Response Act (FFCRA). These additional corrections address text with incorrect cross-references, omitted titles, an omitted comma, and capitalized, for consistency, references to the phrase “Subject to a Quarantine or Isolation Order.”

You think WHD was in a hurry to get its Temporary Rule out the door to advise regulated employers about this new pandemic statute as it applied to the Fair Labor Standards Act?

Friday, April 10, 2020: NLRB Now Delays Final Rule Effective Date

As we reported last week, the National Labor Relations Board (NLRB) issued a Final Rule outlining three amendments to Part 103 of its Rule and Regulations. In light of the COVID-19 Pandemic, the Board has decided to now delay the effective date of its Final Rule from June 1, 2020, to July 31, 2020.

Friday, April 10, 2020: NILG Conference Cancelled

The National Industry Liaison Group (NILG) announced its 2020 National Conference is cancelled due to COVID-19.

Save the Date for Next Year!

“Strike a Chord for Equality and Compliance” from Sunday, August 1 – Wednesday, August 4, 2021 at the Omni Hotel in Nashville, Tennessee. (Note the Sunday start date).

Friday, April 10, 2020: USDOL Announced Guidance on Unemployment Compensation

The U.S. Department of Labor (USDOL) Employment and Training Administration announced the publication of the Unemployment Insurance Program Letter (UIPL) 17-20. The Letter provides further guidance to States as they implement the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), including the Pandemic Emergency Unemployment Compensation (PEUC) program.

We have no comment on the wisdom of the acronym for this new unemployment compensation program.

Friday, April 10, 2020: OSHA Issued Guidance on COVID-19 Reporting

Federal OSHA announced interim guidance as to how OSHA’s recordkeeping requirements (29 CFR Part 1904) apply to the COVID-19 virus contracted in the workplace.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers must record all cases of COVID-19, if the case:

• Is confirmed as a COVID-19 illness;
• Is work-related as defined by 29 CFR 1904.5; and
• Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

For further information and resources about the coronavirus disease, visit OSHA’s COVID-19 webpage.

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.