Equal Pay Day Focuses Attention on Pay Equity

Equal Pay Day on March 15^th resulted in several actions by the federal government including the issuance of an Executive Order by President Biden along with a directive by the Office of Federal Contract Compliance (OFFCP), which is part of the US Department of Labor (DOL) and a  report by DOL looking at the impact of COVID-19 on women in the workplace. OSHA also has partially reopened the comment period on the healthcare workers emergency temporary standard (ETS) and OFCCP has proposed revisions to regulations on pre-enforcement notice and conciliation procedures.

Equal Pay Day – March 15, 2022, was Equal Pay Day, which signifies the day through which U.S. women on average must work to be paid the same wages as those received by men in 2021. There were several actions concerning pay equity that occurred on March 15^th including:

• The issuance of an Executive Order by President Biden noting that the Office of Personnel Management (OPM) will be issuing a proposed rule that will address the use of salary history in the hiring and pay-setting processes for Federal employees. The Executive Order directs the Federal Acquisition Regulatory Council to consider whether to issue proposed rules that would “limit or prohibit Federal contractors and subcontractors from seeking and considering information about job applicants’ and employees’ existing or past compensation when making employment decisions.”
• The release of a directive by the Office of Federal Contract Compliance (OFCCP) that is designed to “provide guidance on how OFCCP will evaluate federal contractors’ compliance with pay equity audit obligations and clarify OFCCP’s authority to access and review pay equity audit.” The directive sets forth the obligation of federal contractors as part of their affirmative action program to undertake a comprehensive review of its compensation practices that includes a pay equity audit.
• Publication of a report by the US Department of Labor titled “Bearing the Cost” that looks at the impact on women in certain jobs that are undervalued were adversely impacted during COVID-19. The report identified two primary factors that contributed to women experiencing more negative employment impacts during the pandemic. First, women are responsible for more family caregiving and had to deal with managing work and care when children were home from school and older family members may have lost access to critical care services. Second, women were overrepresented in industries that experienced the pandemic’s worst job losses. The report includes a series of recommendations, the broad categories of which are: improving gender, racial, and ethnic equity, increasing access and equity in education and training programs, supporting workers with caregiving responsibilities through work-family policies and workplace flexibility, addressing employment discrimination and workplace harassment, and improving job quality.

OSHA Has Partially Reopened the Comment Period on the Healthcare Worker ETS – The US Department of Labor’s Occupational Safety and Health Administration (OSHA) has partially reopened the comment period to address specific topics and is scheduling an informal public hearing on its interim final rule establishing an Emergency Temporary Standard (ETS) concerning occupational exposure to COVID-19 in healthcare settings. Comments need to be submitted by April 22, 2022, and the virtual public hearing will begin on April 27, 2022.

On June 21, 2021, OSHA published an ETS to protect healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present. OSHA is preparing a final rule on this issue. Among the topics on which OSHA is seeking comments are:

• Alignment with the recommendations of the Centers for Disease Control and Prevention (CDC) for healthcare infection control procedures – The CDC recommendations have evolved resulting in some inconsistencies with the ETS.
• Additional flexibility for employers - OSHA is considering restating various provisions as broader requirements without the level of detail included in the ETS and providing a “safe harbor” enforcement policy for employers who comply with applicable CDC guidance.
• Removal of scope exemptions - OSHA is “considering whether the scope of the final standard should cover employers regardless of screening procedures for non-employees and/or vaccination status of employees to ensure that all workers are protected to the extent there is a significant risk.”
• Tailoring controls to address interactions with people with suspected or confirmed COVID-19 - OSHA is examining whether there is a need for COVID-19-specific infection control measures in areas where healthcare employees are not reasonably expected to encounter people with suspected or confirmed COVID-19.
• Employer support for employees who wish to be vaccinated – OSHA advised that it is not considering at this time requiring mandatory vaccination for employees covered by this standard and is considering an adjustment to the employer vaccination support requirement that would provide up to 4 hours of paid time, including travel time, for employees to receive a vaccine and paid sick leave to recover from side effects.
• Requirements for vaccinated workers – OSHA is looking at masking, barrier, or physical distancing requirements for vaccinated workers as well as whether these requirements can be relaxed in healthcare settings where a high percentage of staff is vaccinated.
• Limited coverage of construction activities – Construction activities were not included in the ETS, and OSHA is looking at whether the same coverage for workers engaged in construction work inside a hospital as for workers engaged in maintenance or custodial work in the same facility.
• COVID-19 recordkeeping and reporting provisions – OSHA is proposing to cap the record retention period for the COVID-19 log at one year from the date of the last entry in the log.
• The potential evolution of SARS-CoV-2 into a second novel strain - OSHA is considering specifying that this final standard would apply to COVID-19 and subsequent related strains of the virus that pose similar risks.
• The health effects and risk of COVID-19 since the ETS was issued.

OFCCP Proposes Regulatory Revisions to Contractor Pre-Enforcement Notice & Conciliation Procedures – The Office of Federal Contract Compliance (OFCCP) has issued proposed regulations concerning pre-enforcement notice and conciliation procedures provided to federal contractors that result from OFCCP investigations into their employment practices. Comments are due by April 21, 2022.

In November 2020, OFCCP published a final rule codifying the required use of two notification procedures, the Predetermination Notice, and the Notice of Violation. The OFCCP stated that the 2020 rule established “inflexible evidentiary requirements that mandate overly particularized and confusing evidentiary definitions that impede OFCCP's ability to tailor the pre-enforcement process to the specific facts and circumstances of each case, delay information exchange with contractors, and create obstacles to remedying discrimination.” The OFCCP believes that the 2020 rule also creates “inefficient and duplicative processes,” which impedes its ability to provide early notification to contractors of discrimination indicators found by the agency. OFCCP also expressed concern that the evidentiary detail required at the pre-enforcement stage could result in employers identifying the identities of those who experienced or reported discrimination that could impede the investigation and possibly result in retaliation against them. The proposed rule would rescind the evidentiary standards and definitions in the 2020 rule. OFCCP states that the proposed rule would allow OFCCP to “tailor the pre-enforcement process to the specific facts and circumstances of each case.”

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.