EEOC Releases Final Rule on Issuing Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) has released a final rule that establishes procedural regulations for issuance of guidance. Released on October 30^th, 2020, the rule provides clear procedures that will:

• make guidance documents readily available to the public;
• ensure that guidance is non-binding and does not overstep legal authority;
• require a notice and public comment period for significant guidance; and
• establish a public petition process for the issuance, amendment, or repeal of guidance.

Background of Final Rule

On October 9th, 2019, President Donald J. Trump issued Executive Order (EO) 13891. Entitled “Executive Order: Promoting the Rule of Law Through Improved Agency Guidance Documents,” the EO gives direction on issuing guidance. Under this Executive Order, Federal departments, agencies, and commissions need to adopt policies to ensure that Americans have fair notice of any regulation obligations. Subsequently, the EEOC created their final rule in response to EO 13891.

EEOC Response to Executive Order

In their final rule, the EEOC announced changes to the way the agency will address guidance to employers in the future.  Specifically, any newly-released EEOC guidance will make clear the documentation is non-binding on employers. The new guidance will also include the following disclaimers:

• the guidance will “not have the force and effect of law;”
• the guidance is “not meant to bind the public;” and
• the guidance is “only to provide clarity to the public regarding existing requirements under the law or commission policies.”

The final rule also provides that guidance documents will have a notice and public comment period of 30 days minimum. Additionally, the rule includes the procedure that the public can use to petition the EEOC regarding specific pieces of guidance.  The final rule will go into effect on December 2^nd, 2020.

 Employer Takeaways

It is now extremely important for employers to pay attention to new guidance released by the EEOC.  These guidelines can affect the relationships between employers’ and employees and it’s important for employers to give their opinions. Based on the new final rule, employers will have the opportunity to provide their input before the release of a guidance document that could apply to them. Employers will also have the ability to seek amendment or repeal of guidance already in practice. In addition to this final rule, the EEOC has recently released guidance on employee opioid use and pandemic-related anti-discrimination laws.