March 20, 2020 - Coronavirus, Labor/Employment

OFCCP Issues National Interest Exemption for New Coronavirus Relief Contracts

FCAOn March 17, 2020, the Office of Federal Contract Compliance Programs (“OFCCP” or the “Agency”) issued a National Interest Exemption memorandum providing a limited, three-month exemption to new supply and service and construction contracts entered into specifically to provide Coronavirus relief.  The exemption waives some of the affirmative action requirements typically included in government contracts.

The exemption, which will be in effect from March 17, 2020, to June 17, 2020, suspends certain obligations in FAR 52.222-26, Equal Opportunity, FAR 52.222-35, Equal Opportunity for Veterans, and FAR 52.222-36, Equal Opportunity for Workers with Disabilities, including requirements related to:

  • Creating affirmative action plans and outreach and recruitment efforts;
  • Posting various notices required by EEO laws;
  • Including the EEO statement in job postings;
  • Providing notices to union reps; and
  • Filing EEO-1 reports for contractors with less than 100 employees.

The exemption, however, does not apply to non-discrimination and non-retaliation obligations under OFCCP’s laws, including taking adverse action against employees or applicants because they inquire about, discuss, or disclose their compensation.[1]

This narrow exemption only applies to new federal contracts entered into specifically to provide Coronavirus relief.  As OFCCP’s FAQs explain, “[c]ontractors that hold contracts unrelated to coronavirus relief, and thus were already required to comply with the affirmative action requirements of laws enforced by OFCCP, must continue to do so.”  This exemption, however, may entice companies who currently do not have covered contracts to bid on short-term relief contracts without having to comply with some of the more significant affirmative action obligations.

[1] The laws that OFCCP administers prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, and protected veteran status.

*Victoria Dalcourt Angle is a member of Morrison & Foerster’s government contracts practice group.  She is not yet admitted to the D.C. bar.