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TRICARE Can Skip Bias Audits for Now With Rule Postponement

Oct. 17, 2018, 3:21 PM

TRICARE health-care facilities can hang onto hopes that they’ll be made permanently exempt from federal contractor anti-discrimination audits in the near future, according to the Labor Department’s most recent regulatory agenda.

The facilities have been under an OFCCP enforcement moratorium since June 2014. But the DOL’s fall 2018 agenda, released Oct. 17, indicates its federal contractor watchdog is looking into “limiting and otherwise altering the obligations of TRICARE and other healthcare providers covered by these authorities.” The Office of Federal Contract Compliance Programs monitors contractors for discriminatory employment practices.

TRICARE is the health-care program available to military personnel operating in a civilian capacity.

That could mean a permanent respite from the agency’s oversight, with a proposed rule on the issue expected by June 2019 (RIN:1250-AA08), two months later than in the spring 2018 agenda. The fall 2018 agenda item identically mirrors the spring 2018 item, except for the target date.

Though the facilities are currently exempt from annually scheduled audits, their workers are still protected from discrimination by federal laws, according to an OFCCP web page.

Busy, Busy, Busy

The semiannual agenda outlines the regulatory direction the OFCCP could take over the next year, but the federal contractor enforcement agency has already been busy with policy changes.

The agency released two directives and a list of expectations for contractors being audited in August and proposed a contractor award program earlier this month.

The directives were viewed as being more business-friendly than OFCCP policy under previous leadership. The first of them seeks to respond to contractors’ requests that the agency ease up on analysis of pay data, and the other expanded employers’ ability to use of religious beliefs as a defense against job discrimination charges.

In a “contractor bill of rights,” the agency promised “collaboration” with employers on compliance issues.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Phil Kushin at pkushin@bloomberglaw.com

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