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EEOC Proposes Rules in Line With Trump Guidance Order (1)

May 19, 2020, 10:51 PMUpdated: May 20, 2020, 1:27 PM

A federal workplace civil rights agency has proposed rules for how it will publish guidance for employers and workers, a move that could affect the flow of information during the Covid-19 pandemic.

The Equal Employment Opportunity Commission proposal says its guidance related to anti-discrimination in the workplace will be publicly available and legally nonbinding. All “significant” guidance will be subject to public notice and comment, and there will be a process to give the public more opportunity to weigh in on any proposed guidance changes or repeal, the agency said in a Federal Register notice Tuesday.

The EEOC is the first of the federal labor agencies to propose a set of rules for publishing guidance under a pair of President Donald Trump’s executive orders designed to limit documents, such as advice for businesses, memos, or answers to frequently asked questions, that are issued apart from the formal rulemaking process. Trump laid out steps agencies must take, including setting procedures for publishing guidance.

The EEOC is voluntarily complying with the orders, although as an independent agency, like the National Labor Relations Board, it isn’t required to do so. Agencies have until August 2020 to come up with rules for guidance.

One consumer advocate said the rules, if finalized, could limit the flow of valuable information for businesses as they try to reopen during a critical time—a public health emergency. But attorneys for employers say guidance related to Covid-19 isn’t likely to be impacted.

An EEOC spokeswoman said the proposed rules “are being issued in accordance with section 4 of Executive Order 13891 and we don’t want to comment any further while it is in the rulemaking process.”

The NLRB isn’t working on rules for guidance dissemination at this point, a spokesperson said. The Labor Department is “working on such a rule and plans to publish it by the deadline,” an agency spokesperson said. The Environmental Protection Agency said it was looking to propose its guidance rules for publication.

Pandemic Guidance Excluded?

The EEOC has regularly updated guidance available for workers and businesses on how to prioritize health and safety during the coronavirus pandemic while remaining compliant with federal employment laws.

Amit Narang, a regulatory policy advocate with consumer advocacy group Public Citizen, said in an email that the White House has already suppressed guidance from the U.S. Centers for Disease Control and Prevention on pandemic reopening guidelines.

“The last thing we need are more opportunities for Trump Administration political appointees to make it harder for agencies to issue guidance from career experts in the government,” Narang said. “This EEOC proposal would do just that.”

Narang cited sexual harassment guidance that’s been pending White House evaluation for more than two years as an example of how the review process can be used to hamper release of guidance.

But to trigger a public notice-and-comment period for guidance, it must meet certain criteria to be deemed “significant,” meaning it has to have an annual economic impact of $100 million or more; adversely affect the economy; muddle action by another federal agency; substantially alter budget items; or raise novel legal issues.

The EEOC’s coronavirus guidance wouldn’t get caught up in additional review because it isn’t significant, said James Plunkett, a senior government relations counsel with Ogletree Deakins.

“The employers that we work with are looking for simple guidance documents that can help them be in compliance with the law,” Plunkett said, adding that he, and employers he works with, have found EEOC guidance on the pandemic useful.

With assistance from Hassan Kanu and Bruce Rolfsen.

(Updated with additional reporting on the EEOC's pending sexual harassment guidance.)

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

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com, Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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