Final Rule for Faith-Based Organizations Issued

On December 14th, 2020, the Department of Labor (DOL) announced a joint final rule to implement an Executive Order (EO) affecting faith-based organizations. In conjunction with eight other agencies, the DOL implemented President Donald Trump’s EO 13831 from May 2018. Under EO 13831, religious and non-religious organizations need to experience equal treatment in DOL-supported programs. The original EO also clarified that religious organizations should not lose their legal protections because they participate in federal programs. The following federal agencies participated in the drafting of the final rule:

• Department of Justice
• Department of Homeland Security
• Agency for International Development
• Department of Education
• Department of Health and Human Services
• Housing and Urban Development
• Department of Agriculture
• Department of Veterans Affairs

This is not the only religious-based piece of legislation that the federal government is currently tackling. Separately, in late November 2020, the Equal Employment Opportunity Commission announced updated guidance on workplace religious discrimination protections.

Overview of the Final Rule

The final rule ensures equal treatment for faith-based organizations, consistent with the Constitution and other federal laws. According to the DOL, the rule removes requirements in prior regulations that:

• placed unequal burdens on religious organizations;
• cast unwarranted suspicion on them; and
• were in tension with their religious liberty rights.

Like the EO, there are requirements that religious organizations shouldn’t lose legal protections because of federal program and activity participation.  Above all, these protections include the rights to accommodations and conscience protections under the First Amendment, Religious Freedom Restoration Act, and other laws. Some previously enacted information has not changed, however. The final rule specifically preserves most of the existing regulations governing participation of religious organizations in the DOL’s financial assistance programs. The rule also still includes provisions barring any providers from discriminating against beneficiaries based on religion. It also still requires the separation of any religious activities performed by an organization from activities funded with federal money.

Background of the Final Rule

As noted earlier, this final rule ends a process that began nearly three years ago. The agencies worked collaboratively to draft notices of proposed rulemaking, and published or delivered them to Congress in January 2020.  As a result, the nine agencies then received over 95,000 public comments from a range of interested parties.  Subsequently, after considering those comments, the agencies modified their regulations to address concerns raised, and drafted responses within the final rule. The rule goes into effect on January 16th, 2021.