Tag Archives: social security act

Firms Must Now Clean Up Health Plans

Businesses, brace yourself for health plan enforcement! With the Supreme Court’s much anticipated June 25, 2015, King v. Burwell decision dashing the hope that the Supreme Court would provide relief for businesses and their group health plans from the Patient Protection and Affordable Care Act (ACA) mandates by striking down ACA, U.S. businesses that offered health coverage in 2014 and those continuing to sponsor health coverage must swiftly act to review and verify the adequacy of their 2014 and current group health plan’s compliance with ACA and other federal group health plan mandates. Business must also begin finalizing their group health plan design decisions for the coming year.

Prompt action to assess and verify compliance is particularly critical in light of the much-overlooked “Sox for Health Plans” style rules of Internal Revenue Code (Code) Section 6039D. The rules generally require group health plans that violated various federal group health plan mandates to self-identify and self-report these violations, as well as self-assess and pay the excise taxes of as much as $100 a day per violation triggered by uncorrected violations. While the mandates were applicable prior to 2014 for uncorrected violations of a relatively short list of pre-ACA federal group health mandates, ACA broadened the applicability of Code Section 6039D to include ACA’s group health plan mandates beginning in 2014. This means that, in addition to any other liability that the company, its group health plan and its fiduciaries might bear for violating these rules under the Employee Retirement Income Security Act, the code, the Social Security Act or otherwise, the sponsoring business also will incur liability for the Code Section 6039D excise tax for uncorrected violations, as well as late or non-filing penalties and interest that can result from late or non-filing.

Many employers have significant exposure to these Code Section 6039D excise tax liabilities because many plan sponsors or their vendors have delayed reviewing or updating their group health plans for compliance with some or all of ACA’s mandates. In many cases, businesses delayed in hopes that the Supreme Court would strike down the law, Congress would amend or repeal it, or both. In other cases, limited or continuing changes to the regulatory guidance about some of ACA’s mandates prompted businesses to hold off investing in compliance to minimize compliance costs. Regardless of the past reasons for such delays, however, businesses sponsoring group health plans after 2013 need to recognize and act to address their uncorrected post-2013 ACA violations exposures.

Although many businesses, as well as individual Americans, have held off taking long overdue steps to comply with ACA’s mandates pending the Supreme Court’s King v. Burwell decision, the three agencies charged with enforcement – the IRS, Department of Labor and Department of Health and Human Service — have been gearing up to enforce those provisions of ACA already in effect and to finalize implementation of others in the expectation of the ruling in favor of the Obama administration. As a practical matter, ACA opponents need to recognize that the Supreme Court’s King decision realistically gives these agencies the go-ahead to move forward with these plans for aggressive implementation and enforcement.

Although technically only addressing a challenge to the Obama administration’s interpretation of the individual tax credit (“Individual Subsidy”) that ACA created under Code Section 36B, the Supreme Court’s decision eliminates any realistic hope that the Supreme Court will provide relief to businesses or their group health plans with any meaningful past or current ACA violations by striking down the law itself. Of all of the currently pending challenges to ACA working their way to through the courts, the King case presented the best chance of a Supreme Court ruling that would wholesale invalidate ACA’s insurance reforms, if not the law itself, because of the importance of the Individual Subsidy to the intended workings of those reforms. By upholding the Obama Administration’s interpretation of Code Section 36B as allowing otherwise qualifying individuals living in states without a state-run ACA health insurance exchange to claim the Individual Subsidy for buying health care coverage through the federal Healthcare.gov health insurance exchange, the Supreme Court effectively killed the best possibility that the Supreme Court would invalidate the insurance reforms or ACA itself. While various challenges still exist to the law or certain of the Obama administration’s interpretations of its provisions, none of these existing challenges present any significant possibility that the Supreme Court will strike down ACA.

While the Republicans in Congress have promised to take congressional action to repeal or reform ACA since retaking control of the Senate in last fall’s elections, meaningful legislative reform also looks unlikely because the Republicans do not have the votes to override a presidential veto.

In light of these developments, businesses must prepare both to meet their current and future ACA and other federal health plan compliance obligations and defend potential deficiencies in their previous compliance over the past several years. The importance of these actions takes on particular urgency given the impending deadlines under the largely overlooked “Sox for Health Plans” rules of Code Section 6039D for businesses that sponsored group health plans after 2013.

Under Code Section 6039D, businesses sponsoring group health plans in 2014 must self-assess the adequacy of their group health plan’s compliance with a long list of ACA and other federal mandates in 2014. To the extent that there exist uncorrected violations, businesses must self-report these violations and self-assess on IRS Form 8928 and pay the required excise tax penalty of $100 for each day in the noncompliance period with respect to each individual to whom such failure relates. For ACA violations, the reporting and payment deadline generally is the original due date for the business’ tax return. Absent further regulatory or legislative relief, businesses providing group health plan coverage in 2014 or thereafter also should expect to face similar obligations and exposures. As a result, businesses that sponsored group health plans in 2014 or thereafter should act quickly to verify the adequacy of their group health plan’s compliance with all ACA and other group health plan mandates covered by the Code Section 6039D reporting requirements. Prompt action to identify and self-correct covered violations may mitigate the penalties a company faces under Code Section 6039D as well as other potential liabilities associated with those violations under the Employee Retirement Income Security Act (ERISA), the Social Security Act or other federal laws. On the other hand, failing to act promptly to identify and deal with these requirements and the potential reporting and excise tax penalty self-assessment and payment requirements imposed by Code Section 6039D can significantly increase the liability the business faces for these violations substantially both by triggering additional interest and late payment and filing penalties, as well as forfeiting the potential opportunities that Code Section 6039D otherwise might offer to qualify to reduce or avoid penalties through good-faith efforts to comply or self-correct.

While current guidance allows businesses the opportunity to extend the deadline for filing of their Form 8928, the payment deadline for the excise taxes cannot be extended. Code Section 6039D provides opportunities for businesses to reduce their excise tax exposure by self-correction or showing good faith efforts to comply with the ACA and other group health plan mandates covered by Code Section 6039D. Businesses need to recognize, however, that delay in identification and correction of any compliance concerns makes them less likely to qualify for this relief. Accordingly, prompt action to audit compliance and address any compliance concerns is advisable to mitigate these risks as well as other exposures.

Businesses preparing to conduct audits also are urged to consider seeking the advice from qualified legal counsel experienced in these and other group health plan matters before initiating their audit, as well as regarding the evaluation of any concerns that might be uncovered. While businesses inevitably will need to involve or coordinate with their accounting, broker and other vendors involved with the plans, businesses generally will want to preserve the ability to claim attorney-client privilege to protect all or parts of their audit investigation and analysis and certain other matters against discovery. Business will also want assistance with proper evaluation of options in light of findings and assistance from counsel to document the investigation and carefully craft any corrective actions for defensibility.

Don't Get Washed Away By The Medicare Set-Aside

A storm has been brewing since requirements for set asides were established in order to protect Medicare from future medical expenses from work comp and general liability claims. With the mandatory requirement that all work comp and general liability claims be reported in electronic format, CMS has the mechanism to look back and identify if they have ever made any work comp-related medical payments. Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 adds new mandatory reporting requirements for group health plan (GHP) arrangements and for Liability Insurance (including Self-Insurance), No-Fault Insurance, and Workers' Compensation. Failure to comply will subject any company to a fine of $1,000 per day and “double damages.”

While this practice has been required for many years in workers' compensation, the new mandatory reporting application to civil matters has dramatic implications. It should be noted that Medicare's status as a secondary payer under 42 U.S.C. § 1395y (b) creates the right to reimbursement, which has the potential to simultaneously impede settlement and impose a possible risk of future liability against all parties.

In the 1980s, Congress amended the Social Security Act to include the Medicare Secondary Payer Act (“MSP”), which effectively enacted Medicare liens. In 2003, the Government clarified its position that self-insured entities were also included in the Medicare Secondary Payer Act in passing the Medicare Act of 2003. The 2003 revisions altered the Medicare Secondary Payer Act to expressly include self-insured entities as “responsible” parties obligated to reimburse Medicare.

Prior to the Act, Medicare did not have an efficient mechanism to identify or evaluate instances where Medicare's liability should have been secondary to the “responsible” party (or it's insurance carrier), and could only recoup payment from insurance plans to the extent that payment had been made or could “reasonably be expected to be made promptly.”

The 2003 amendments to the MMA, found in Title III, were specifically enacted to overturn court decisions that limited the effectiveness of the Medicare Secondary Payer Act private cause of action. The amendments made it easier for injured Medicare recipients to bring these private actions on Medicare's behalf against an expanded class of entities and individuals with insurance, and they clarified when such entities and individuals must pay the Medicare beneficiary's medical expenses. The Amendments state:

All businesses, trades, and professions are deemed to have insurance, regardless of whether they carry their own risk. Any judgment or payment — including a settlement — conditioned on the recipient's compromise, waiver, or release of claims against the person or entity that commits the wrongful act (whether or not there is a determination or admission of liability) demonstrates a plan's responsibility to reimburse Medicare.

This legislation thereby expanded the possible defendants for the private cause of action to include any person or entity (including a business, trade, or profession without insurance), the entity's insurance company, and the plaintiff's self-insured employer or the third-party administrator. With these amendments it is now crystal clear that Medicare's right of reimbursement applies to almost all settlements in which Medicare payments have been made on a plaintiff's behalf. In addition, Congress applied the amendments retroactively to the original passage of the act in 1980. Court decisions since the 2003 amendments were enacted have consistently allowed the private cause of action to proceed against insurers and similar entities, including employers, who are deemed responsible for injuries. Therefore, responsible parties need to be made aware of the double exposure and how both the 2003 amendments to the Medicare Secondary Payer Act statute and the subsequent court cases expand the class of entities with direct exposure to damages.

The latest update took place very recently. On October 1, 2012, the Supreme Court declined review of a lower court's Medicare Secondary Payer decision. The important facts decided in this case (Hadden vs United States) is the fact the Supreme Court of the United States declined review of a 6th Circuit decision that upheld the government's authority under the Medicare Secondary Payer law to recover all expenses paid on behalf of a Medicare beneficiary when that beneficiary, in turn, recovers from a third party. The ruling helped define “Responsibility” under 42 U.S.C. 1395y (b)(2)(B)(ii), as that term was clarified under the 2003 amendment to the Medicare Secondary Payer Act. In this respect, the court essentially ruled that when there is a settlement, the primary plan demonstrates “responsibility” as defined under the Medicare Secondary Payer Act statute, thereby entitling Medicare to a full recovery of its claimed conditional payment amount — even if the settlement is for a compromised or reduced amount.

How will this affect employers?

One scenario is that when CMS/Medicare learns (and they will) it has been paying for work comp-related medical care, it will seek repayment from the claimant. The claimant, having spent the work comp settlement, will be unable to pay. Ultimately, it will be the employer and/or insurance carrier that will be held accountable. And should CMS have to pursue the employer in court, the amount is doubled. Unbelievably, the insured or employer could pay the future medical cost twice — once to the claimant at settlement and later when Medicare seeks reimbursement of the medical care they paid on behalf of the claimant. Legal attempts to put language in settlement agreements that the claimant agrees to be responsible for the cost of all future medical care has or will likely meet with failure because federal law will trump settlement agreements every time. Claimants, employers, and insurers are still bound by the requirements of the MSA statutes. Another scenario allows for a private cause of action to proceed against insurers and similar entities, in which there is still a potential for double costs.

Going forward, claims adjusters should have systems in place to verify compliance with the MSA requirements of CMS. However, problems may arise when you look backwards; there is no statute of limitations on compliance with the MSA requirements. CMS can review claims that were closed last year, five years ago or more for that matter to check for compliance. If CMS finds medical payments are owed, then you have 10 days to pay to avoid penalties and interest. One potential solution is baseline testing that can establish if there is an injury and if it is related to or aggravated by the date of loss.

Brace For New Disability Discrimination Claims

President Obama’s declaration on October 1, 2012 of October as National Disability Employment Awareness Month reminds business that U.S. businesses and their leaders need to tighten their disability discrimination risk management and compliance in light of the Obama Administration’s emphasis on aggressively interpreting and enforcing disability discrimination laws, rising private plaintiff lawsuits and other recent regulatory and judicial changes.

With the Administration expected to step up further its already substantial educational outreach to the disabled and their advocates, U.S. employers should brace for this month’s celebration to fuel even more disability discrimination claims and other activity by the disabled and their activists.

Since taking office, President Obama has made enforcing and expanding the rights of the disabled in employment and other areas a leading priority. In his proclamation, President Obama reaffirmed his often stated commitment to the aggressive enforcement of disability laws and other efforts to promote opportunities for disabled individuals, stating “[My Administration remains committed to helping our businesses, schools, and communities support our entire workforce. To meet this challenge,… we are striving to make it easier to get and keep those jobs by improving compliance with Section 508 of the Rehabilitation Act.”

As the administration marks the month, U.S. employers and other business leaders can expect the Obama Administration will be stepping up its already aggressive outreach to disabled Americans to promote awareness of their disability law rights and tools for asserting and enforcing these rights. See, e.g. October Is National Disability Employment Awareness Month (NDEAM).

Business Faces Growing Employment Disability Exposures
As part of his administration’s commitment, the Obama Administration has moved to aggressively enforce the disability and accommodations of the Americans With Disabilities Act (ADA), Section 508 of the Rehabilitation Act, and other federal disability discrimination laws. The reach and effectiveness of these efforts has been enhanced by statutory and regulatory changes that require employers to exercise greater efforts to meet their compliance obligations and manage their disability and other discrimination risks.

ADA Exposures Heightened
The ADA, for instance, generally prohibits disability discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship. Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits. Employees or applicants that can prove they experienced prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).

In recent years, amendments to the original provisions of the ADA have made it easier for plaintiffs and the EEOC to prove disabled status of an individual. Businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled.

As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that they have a disability within the meaning of the ADA. The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • Directs the EEOC to revise that part of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments. Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have significantly stepped up enforcement of the ADA and other federal discrimination laws.

Recent enforcement, regulatory and other activities by the EEOC show that the EEOC is enthusiastically moving forward to exercise its regulatory and enforcement powers under these enhanced ADA provisions to tighten requirements for employers and to enforce its rules. See e.g.,

Rising Rehabilitation Act Risks For Government Contractors
Beyond the generally applicable risks to all employers of more than 15 employees under the ADA, federal and state government contractors face more responsibilities and risks.

Subject to limited exceptions, government contractors providing services or supplies on ARRA or other government-funded contracts or projects must comply both with generally applicable employment discrimination requirements and special statutory and contractual nondiscrimination, affirmative action, and recordkeeping requirements applicable to government contractors. For instance, federal law generally requires government contractors to comply with the special equal employment opportunity requirements of Executive Order 11246 (EO 11246), Section 503 of the Rehabilitation Act of 1973 (Section 503), and the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).

Pursuant to these laws, business with the federal government, both contractors and subcontractors, generally must follow a number of statutory and contractual requirements to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. OFCCP generally audits and enforces these requirements. See Memo to Funding Recipients: Compliance with Applicable Nondiscrimination and Equal Opportunity Statutes, Regulations, and Executive Orders.

OFCCP has made clear that it will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA.

While many government contractors may be tempted to become complacent about OFCCP exposures based on reports of the OFCCP’s relatively low enforcement in the past, see Report Says OFCCP Enforcement Data Show Infrequent Veteran, Disability Bias Findings. Recent enforcement data documents that OFCCP is getting much more serious and aggressive about auditing and enforcing compliance with its affirmative action and other requirements against government contractors under the Obama Administration. See also OFCCP Enforcement Data is Available on a New DOL Website and Affirmative Action Update: OFCCP Enforcement Statistics Show Increase in Violations.

The readiness of OFCCP to enforce its rules is illustrated by the settlement of an OFCCP action filed against federal contractor Nash Finch Co. (Nash Finch) announced recently. Under the settlement, Nash Finch agreed to pay $188,500 in back wages and interest and offer jobs to certain women applicants who OFCCP charged Nash rejected for the entry-level position of order selector at the company’s distribution facility in Lumberton, Minnesota. See Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.

These government contractor disability discrimination risks are particularly acute where the government contractor works on or provides supplies on contacts or projects funded in whole or in part by monies provided under ARRA. When the contract or project in question receives any funding out of the $787 billion of stimulus funding provided by ARRA, special OFCCP rules applicable to ARRA funded projects necessitates that federal contractors exercise special care to understand and meet their responsibilities and manage associated exposures. See, e.g. Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.

GINA & Other Medical Information Nondiscrimination & Privacy Risks
Employers also need to use care to ensure that their hiring and other employment practices, as well as their employee benefits, workers’ compensation and wellness practices are up to date and properly managed to mitigate exposures under laws like the Genetic Information and Nondiscrimination Act (GINA), the ADA’s medical information privacy requirements, as well as the privacy and nondiscrimination rules of the Health Insurance Portability & Accountability Act and other relevant federal and state laws.

Signed into law by President Bush on May 21, 2008 and in effect since November 21, 2009, for instance, Title VII of GINA amended the Civil Rights Act to prohibit employment discrimination based on genetic information and to restrict the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like now available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws. For instance, GINA’s employment related provisions include rules that:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclose the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to HIPAA, the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

Under these HIPAA and GINA rules, health plans generally may not make certain medical inquiries or discriminate against employees or their family members based on family or individual medical history or genetic information. In addition, health plans and others are required to safeguard personal medical information and may only share that information under very limited circumstances requiring specific documentation be in place and that the parties can prove that the access and use of that information is appropriately restricted. Violation of these and other rules can have significant civil and in some cases even criminal liabilities for companies, plans, plan fiduciaries and company officials that take part in violations of these rules.

Businesses Should Act To Manage Risks
The ADAAA amendments, the Rehabilitation Act’s expanded reach, and the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will have fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify and claim protection as disabled under the ADA, the Rehabilitation Act, and other disability discrimination laws.

All U.S. businesses should review and tighten the adequacy of their existing compliance and risk management practices to promote and document compliance. These efforts should focus on all relevant hiring, recruitment, promotion, compensation, recordkeeping and reporting policies and practices internally, as well as those of any recruiting agencies, subcontractors or other business partners whose actions might impact on compliance.

In light of these and other developments and risks, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA, the Rehabilitation Act and other laws. Management should exercise caution to carefully and appropriately assess and identify the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that management might be tempted to assume fall outside the ADA’s scope.

Likewise, businesses should be ready for the EEOC, OFCCP and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions. For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information. The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA.

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the genetic information nondiscrimination and privacy rules enacted as part of GINA, the health care privacy rules of the HIPAA, and the medical record privacy rules of the ADA. Particular care should be used when planning wellness, health risk assessment, work-related injury, family or other medical leave or related programs, all of which raise particular risks and concerns.

In the face of the rising emphasis of OFCCP, the EEOC and other federal and state agencies on these audit and enforcement activities, government contractors should exercise additional compliance and risk management efforts beyond these generally recommended steps. Among other things, these steps should include the following:

  • Government contractors and subcontractors should specifically review their existing or proposed contracts and involvements to identify projects or contracts which may involve federal or state contracts or funding that could trigger responsibility. In this respect, businesses should conduct well-documented inquiries when proposing and accepting contracts to ensure that potential obligations as a government contractor are not overlooked because of inadequate intake procedures. Businesses also should keep in mind that ARRA and other federal program funds often may be filtered through a complex maze of federal grants or program funding to states or other organizations, which may pass along government contractor status and liability when subcontracting for services as part of the implementation of broader programs. Since the existence of these obligations often is signaled by contractual representations in the contracts with these parties, careful review of contractual or bid specifications and commitments is essential. However, it also generally is advisable also to inquire about whether the requested products or services are provided pursuant to programs or contracts subject to these requirements early in the process.
  • In addition to working to identify contracts and arrangements that are covered by OFCCP or other requirements, government contractors and other businesses also should reconfirm and continuously monitor the specific reporting, affirmative action, and other requirements that apply to any programs that may be subject to OFCCP requirements to ensure that they fully understand and implement appropriate procedures to comply with these conditions as well as pass along the obligation to make similarly necessary arrangements to any subcontractors or suppliers that the government contractor involves as a subcontractor.
  • Throughout the course of the contract, the government contractor also should take steps to maintain and file all required reports and monitor and audit operational compliance with these and other requirements.
  • The organization should develop and administer appropriate procedures for monitoring and investigating potential compliance concerns and maintaining documentation of that activity. Any known potential deficiencies or complaints should be promptly investigated and redressed with the assistance of qualified counsel in a prompt manner to mitigate potential risks.
  • Documentation should be carefully retained and organized on a real time and continuous basis to faciliate efficiency and effectiveness in completing required reports, monitoring compliance indicators and responding to OFCCP, EEOC or private plaintiff charges as well as other compliance inquiries.
  • Any audit inquiries or charges should be promptly referred to qualified legal counsel for timely evaluation and response.
  • When available and affordable, management should consider securing appropriate employment practices liability coverage, indemnification from business partners and other liability protection and assurance to help mitigate investigagtion and defense costs.
  • Board members or other senior management should include periodic review of compliance in their agenda.