COVID-19 Impact on OFCCP, EEO-1 and VETS-4212 Compliance

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Seyfarth Synopsis:  This alert provides an update on the impact of COVID-19 on OFCCP audits and jurisdiction, EEO-1 and VETS-4212 filing deadlines. The OFCCP has granted a limited national interest exemption for new COVID-19 related contracts and is handling extension requests for current compliance evaluations on a case-by-case basis. Currently, neither the EEOC nor the VETS Administration has issued any guidance on the impact that closures and mandatory teleworking may have on the EEO-1 or VETS-4212.

In coordination with Seyfarth’s Coronavirus COVID-19 Cross-Departmental Task Force, which launched the COVID-19 Resource Center to bring together legal updates, blog posts, and resources that the firm is producing in real time across all substantive legal areas and practices, the People Analytics Group is tracking the evolving implications of the Coronavirus (COVID-19) for federal contractors.

Current OFCCP Compliance Evaluations

As of today, there have been no formal changes related to current OFCCP audits because of COVID-19.  While the OFCCP has implemented agency-wide telework, it has not suspended any audits or furloughed any employees.  The agency is still issuing audit notices -- some received by contractors this week -- and contractors should assume, at least for now, that they will continue to receive requests from compliance officers.  That said, it is our understanding that OFCCP is handling requests for extensions or postponements of OFCCP onsite audits, on a case-by-case basis.  We will monitor and will update you with any changes.

OFCCP Exemption for New Contracts

On March 17, the OFCCP issued an exemption from some affirmative action requirements for contractors entering into new federal contracts related to COVID-19.  The exemption will grant a limited, three-month waiver from some of the affirmative action requirements administered by the agency.  This means that employers who are seeking to assist the federal government in connection with its efforts to respond to COVID-19 can do so without fearing that these contracts will create affirmative action obligations. 

If you are entering into a contract with a federal agency to provide supplies or services related to COVID-19, you should ensure that the appropriate language outlined in the OFCCP’s exemption notice is included in the contracts.  It is important to note that the exemption does not apply to the processing of complaints of discrimination under 41 CFR 60-1.21-1.24, 41 CFR 60-300.61, and 41 CFR 60-741.61 or to any compliance obligations under other federal, state, or local civil rights laws.

There have also been other changes to the federal procurement procedures, which our Government Contracting Team has discussed here. This update addresses the procedures that federal agencies may employ during a national emergency such as COVID-19. Because these procedures do not often look like typical procurement procedures, contractors should be mindful of the rules to better position themselves as they seek out opportunities.        

EEO-1

As we previously reported, the EEOC is in the process of seeking approval to collect the EEO-1 Survey for 2019 and, as of today, the 2019 EEO-1 Survey has not opened nor has the EEOC given any indication of when it will begin accepting online filings.  The EEOC has not yet indicated if online filings will be further delayed as a result of COVID-19.  We will continue to monitor and update you with any changes.  It is important to note that in addition to exempting covered federal contractors from affirmative action obligations, the OFCCP’s exemption also grants any companies with fewer than 100 employees that enter into COVID-19 related federal contracts in excess of $50,000 a waiver from filing an EEO-1 Report.

VETS-4212

The VETS Administration has not yet indicated if there will be any changes to VETS-4212 reporting as a result of COVID-19.  As with the EEO-1 Report, the OFCCP’s exemption also applies to contractors who enter into COVID-19 related contracts valued at $150,000 or more.  We will monitor and will update you with any changes.

What You Should Do Now

If you have not yet collected your affirmative action plan data, but still have resources to do so, we encourage you to gather this data as soon as possible, in case there are any disruptions to your ability to gather the information in the future.  

As more information becomes available, Seyfarth’s People Analytics Team, in coordination with Seyfarth’s Coronavirus COVID-19 Cross-Departmental Task Force, will be providing updates including emerging legal challenges faced by clients, practical recommendations, and actions to be taken as the potential pandemic unfolds.  Those resources are available at the Seyfarth COVID-19 Website.

If you have any questions, please feel free to reach out to your Seyfarth AAP and People Analytics Team.