Affirmative action requirements waived for contracts specifically related to COVID-19 relief

As in past times of national emergency, the Office of Federal Contract Compliance Programs has stepped up to exempt certain new federal supply and service contractors and subcontractors from having to comply with most OFCCP requirements over the course of the contract. Announced March 17, OFCCP calls the action the “National Interest Exemption.” Contractors providing supplies and services specifically related to COVID-19 relief must still abide by OFCCP’s non-discrimination and non-retaliation obligations and are subject to OFCCP complaint investigations. The exemption extends to the obligations of all three laws enforced by OFCCP: Executive Order 11246, § 503 of the Rehabilitation Act, and § 4212 of VEVRAA.

Qualifying for the exemption

  1. Contractors and subcontractors eligible for this exemption must not have other covered federal contracts or subcontracts unrelated to COVID-19 relief.
  2. The new contract must have been entered into between March 17, 2020 and June 17, 2020. OFCCP Director Craig Leen implied that the time period may be extended.
  3. The new contract must be limited to COVID-19 relief; any part of the contract for other purposes will disqualify the contractor from the exemption.
  4. The exemption applies only to OFCCP-administered programs, not other DOL laws, regulations or programs.

FAR sections affected

Federal agencies and prime contractors may refer to the National Interest Exemption in their contracts, but these references are not required for the exemption to apply. FAR 52-222.26, 52-222.35, and 52-222.36 are impacted.  Sample modified FAR contract clauses are set forth in OFCCP’s memo.

Benefits of the exemption

The exemption encourages companies to help during this time of national crisis without the burden of additional regulatory requirements, some of which can be costly and time-consuming over the course of many years. The exemption relieves companies from obligations to:

    • Draft the annual affirmation action plan;
    • List open positions with the state job service;
    • Post job openings;
    • Include the EEO tagline in solicitation/advertisements;
    • File an EE0-1 form, if between 50 and 99 employees; and
    • Submit to an OFCCP compliance review.

OFCCP has also published a substantive FAQ on the Exemption.


Further reading on the impact of COVID-19-

Husch Blackwell’s COVID-19 tool kit

Federal agency guidance on COVID-19

Is Coronavirus an excusable delay?