By Vin Gurrieri

Law360 (March 18, 2020, 5:43 PM EDT) -- The Office of Federal Contract Compliance Programs said Tuesday that it will waive various equal employment opportunity requirements for at least three months for companies that are contracted by the federal government to provide services related to the novel coronavirus.  

The OFCCP, a subagency within the U.S. Department of Labor that polices bias among government contractors, issued a so-called national interest exemption memorandum that grants contractors a "limited exemption and waiver" from portions of the three legal authorities the agency enforces.

Those legal authorities are: Executive Order 11246, an order from the administration of President Lyndon B. Johnson that bars federal contractors from discriminating based on race, color, religion, sex, sexual orientation, gender identity, disability, veteran status or national origin; Section 503 of the Rehabilitation Act of 1973, which bars discrimination against workers with disabilities; and the Vietnam Era Veterans' Readjustment Assistance Act, which bars discrimination against veterans.

President Donald Trump last week declared a national emergency to help combat the coronavirus pandemic. The declaration freed up billions of dollars to fund the government's response to COVID-19, the disease caused by coronavirus, and allows federal agencies the flexibility to waive rules, especially in health care. 

In the memo, OFCCP Director Craig Leen cited the "special circumstances" created by the outbreak as a rationale for granting the waivers. He also noted that the OFCCP's move is "consistent with agency practice relating to emergency responses."

The memo frees contractors who enter into "supply and service and construction contracts" with the federal government aimed at coronavirus relief from any affirmative action obligations. It also exempts contracts from having to include language that such contractors may be subject to on-site compliance visits from the OFCCP.  

Leen said the waivers will remain in place until June 17 — a three-month time frame that can be extended, depending on how the public health crisis unfolds. 

"Following President Trump's direction, the [OFCCP] is committed to swiftly responding to COVID-19," Leen said in a statement, adding that the memorandum "helps federal agencies and federal contractors engaged in relief efforts to protect the safety, security and health of the American people."

Mickey Silberman of Silberman Law PC, whose practice includes a heavy focus on OFCCP issues, told Law360 that while the national interest exemption memo is limited in its time frame, it potentially would include a broad swath of contracts, even those on the furthest bands of the government's response effort. 

Silberman said examples of the contracts that would fall under the memo's umbrella include: A medical supply company retained by the government to provide ventilators; a subcontractor that provides building materials to a company tapped to build a temporary hospital; a staffing company that provides nurses or cleaning crews to work in facilities designated to house people who must be quarantined; and a financial services company that provides a financial product or instrument related to the federal government's economic relief efforts. 

While the memo doesn't absolve contractors from having to comply with existing anti-discrimination laws, Silberman noted that it frees them from proactively having to create or annually update affirmative action programs as most contractors normally must do.

"The thinking behind the exemption is we want to get the best government contractors, as quickly as possible, to address the urgent needs that are arising from this national emergency," Silberman said, noting that some companies shy away from government contract work because of the affirmative action obligations and associated administrative burdens that come with it. 

--Editing by Michael Watanabe.

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