OFCCP Week In Review: June 22, 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 I. In today’s edition, we discuss:

• Additional 30-Day Extension on I-9 Flexibility
• Advisory Meeting on Veterans Outreach
• EEOC Says “No” To Antibody Tests
• USDOL To Host Compliance Assistance Webinars
• DACA Roller Coaster Continues as SCOTUS Strikes Down Trump Administration Rescission of Program, but ALSO Says the President May Rescind it if He Does it the Right Way

Tuesday, June 16, 2020: Additional 30-Day Extension on I-9 Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced another extension of the U.S. Department of Homeland Security’s (DHS’s) decision to temporarily not enforce the “physical presence requirement” of the Department’s Rules which so require that employers completing the Employment Eligibility Verification Form I-9. In March, due to COVID-19 precautions, DHS first announced that it would exercise its prosecutorial discretion and not require employers to comply with its “physical presence requirements (of new hires) when completing the I-9 Form.”

The Rule, originally announced on March 30th was extended through May 19, 2020, and has now been extended another 30 days, through July 19, 2020.

According to the ICE announcement, employers to whom ICE served notices of inspection (NOIs) in March 2020 and which had not already responded to ICE, were granted an automatic extension for 60 days from the effective date of the NOI. ICE will now grant an additional extension of 30 days to those employers. ICE also reported that this will be the final extension relative to NOIs ICE served in March 2020.

Wednesday, June 17, 2020: Advisory Meeting on Veterans Outreach

The Veterans’ Employment and Training Service (VETS), within the US Department of Labor (USDOL), published a notice of meeting with the schedule and proposed agenda of a forthcoming meeting of the Advisory Committee on Veterans’ Employment, Training, and Employer Outreach ACVETEO. The ACVETEO will discuss the USDOL core programs and services that assist veterans seeking employment and which raise employer awareness of the advantages of hiring veterans. There will be an opportunity for individuals or organizations to address the Committee. Any individual or organization that wishes to do so should contact Mr. Gregory Green at 202-693-4734.

Date: July 23, 2020

Time: 9:00 AM -12:00 PM EST

Meeting Link

Meeting Number: 161 170 0798

Password: CmnMaM6b@23.

Additional information regarding the Committee, including its charter, current membership list, annual reports, meeting minutes, and meeting updates, may be found on the Advisory Committee landing page on the VETS website.

Wednesday, June 17, 2020: EEOC Says “No” To Antibody Tests

The Equal Employment Opportunity Commission (EEOC) announced the release of another update to its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

What’s the Scoop?

Section A: Disability-Related Inquiries and Medical Exams

Question:

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA, may an employer require antibody testing before permitting employees to re-enter the workplace? 

Answer:

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to monitor the CDC’s recommendations closely and could update this discussion in response to changes in the CDC’s recommendations.

Thursday, June 18, 2020: USDOL To Host Compliance Assistance Webinars

The U.S. Department of Labor Office announced it will host four webinars in June and July to discuss “how the Department is helping workers and employers by reducing regulatory burdens and making it easier to understand and comply with the law.” The webinars will also provide an opportunity for questions and open discussion on how the Department can expand and improve access to its compliance assistance materials.

Upcoming webinars with guest speakers for the following industries include:

Agriculture

• Guest Speaker: Wage and Hour Division Administrator Cheryl Stanton
• Tuesday, June 23, 2020, 1:00 p.m. to 2:15 p.m. EDT
• Register at Link Compliance Assistance Webinar 1                    

Manufacturing and Construction

• Guest Speaker: Occupational Safety and Health Administration Principal Deputy Assistant Secretary Loren Sweatt
• Thursday, June 25, 2020, 1:00 p.m. to 2:15 p.m. EDT
• Register at Link Compliance Assistance Webinar 2

Food Service, Hospitality, and Retail

• Guest Speaker: Employment and Training Administration Deputy Assistant Secretary Amy Simon
• Tuesday, June 30, 2020, 1:00 p.m. to 2:15 p.m. EDT
• Register at Link Compliance Assistance Webinar 3

Health Care and Emergency Responders

• Guest Speaker: Employee Benefits Security Administration Acting Assistant Secretary Jeanne Klinefelter Wilson
• Wednesday, July 1, 2020, 1:00 p.m. to 2:15 p.m. EDT
• Register at Link Compliance Assistance Webinar 4

Thursday, June 18, 2020: DACA Roller Coaster Continues as SCOTUS Strikes Down Trump Administration Rescission of Program, but ALSO Says the President May Rescind it if He Does it the Right Way

Breaking the hearts of conservatives for the second time in a week, Chief Justice John Roberts penned a 5-4 majority decision striking down the Trump Administration’s 2017 rescission of the Deferred Action for Childhood Arrivals (DACA) program. However, all parties and all nine Justices of the Supreme Court of the United States (SCOTUS) agreed that The President had the legal power to stop DACA. Plaintiffs challenging the Department of Homeland Security’s (DHS’s) decision to rescind the DACA program nonetheless successfully argued that the Department of Justice lawyers ordering the rescission (because DACA was assertedly illegal in the U.S. Department of Justice’s view) simply went about it the wrong way pursuant to the Administrative Procedure Act (APA):

“The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” (Slip Opinion at pg. 9)

The 74-page case decision is the Department of Homeland Security, et al. v. Regents of The University of California, et al.

Click the image below for the ‘Inside Story’ and insight into how the Administrative Procedure Act is supposed to operate, a process which has foiled both the Obama and Trump Administrations as they both sought to exalt Executive power at the expense of the Congress. 

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.