OFCCP has three agenda items currently in the proposed rule stage. Meaning, the following rules have been proposed to the public in order to address a specific problem or accomplish an agency goal:
- Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE and Certain Other Healthcare Providers
- Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption
- Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination
For the first proposed rule, concerning TRICARE, DCI has written about this before, when Directive 2018-02 was issued under former OFCCP Director Ondray T. Harris. The difference is that directives are only regulatory guidance, whereas a proposed rule would necessitate regulatory action. Ultimately, this action is in familiar support of companies who provide healthcare to the military.
The second proposed rule concerns previous regulatory conflicts between religious freedom and LGBT non-discrimination. Although religious accommodations have been in place for federal contractors since 1978, this rule would propose to “update its regulations to comply with current law regarding protections for religion-exercising organizations.” The proposed rule is vague, and similar to the first proposed rule, has also been preceded by an OFCCP Directive (2018-03). In essence, the goal is likely to clarify the agency’s stance in light of recent religiously oriented court decisions.
Finally, the last proposed rule, is new. However, it also bears some resemblance to previously issued directives, and to Director Leen’s OFCCP tenants of transparency and efficiency. We anticipate that his proposed rule would relate mostly to early resolution procedures and possibly shorten the length of time it takes to resolve cases.
DCI will be following the Department of Labor’s regulatory agenda, and update with new developments.
By Rachel Monroe, Associate Consultant at DCI Consulting Group
