On December 4, 2013, the U.S. House of Representative’s Education and Workforce’s Subcommittee on Workforce Protections held a hearing to examine the recent activities of the Office of Federal Contract Compliance Programs (OFCCP), particularly, the new regulations for protected veterans and individuals with disabilities. A webcast of the hearing is available by clicking here.
Committee members challenged OFCCP Director Patricia Shiu to explain how the new requirement to ask applicants about disability status does not violate the Americans with Disabilities Act (ADA). Director Shiu claims that the ADA permits employers to inquire about disability status at the application stage if this is done in furtherance of affirmative action. Rep. Tom Rokita, (R-Ill) disagreed with Director Shiu’s interpretation and challenged the agency to agree to join in any litigation against any employer for violation of the ADA. Director Shiu declined to agree, but said she would discuss it with the Solicitor’s Office. Director Shiu was also asked to defend the agency’s recent attempts to expand its jurisdiction over healthcare providers who provide services under TRICARE or other federal government programs. The day before the hearing, Rep. Tim Walberg (R-Mich.), chairman of the Subcommittee on Workforce Protections, introduced a bill titled Protecting Health Care Providers from Increased Administrative Burdens Act (H.R. 3633). This bill seeks to protect any health care provider from being deemed a federal contractor because it receives payment for services, directly or indirectly, from the U.S. government. Although Director Shiu claims that the agency has not attempted to expand its jurisdiction with respect to healthcare providers, recent audits and litigation suggest otherwise.
MSEC will continue to monitor these issues, and will provide updates as they become available.