DOL Establishes New Policies on Agency Guidance

September 15, 2020

On August 21, 2020, the DOL published its “Promoting Regulatory Openness through Good Guidance Rule.” This procedural rule clarifies the agency’s policy regarding guidance it produces for regulations under its purview. Particularly, the agency seeks to make it clearer that its guidance does not have the full force and effect of law. Instead, the DOL issues public “statements of general applicability” setting forth “agency policy or the DOL’s interpretation of a statute or regulation intended to have future effect on the behavior of regulated persons, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation.” The rule also seeks to make the process of producing such guidance as transparent and helpful as possible.

Pursuant to those goals, the rule requires (among other things) that guidance include a disclaimer that it does not have the force and effect of law, that guidance avoid terms such as “shall,” “must” and “require,” and that the term “guidance” be prominently displayed. The rule creates a review procedure that must be followed before the agency issues its guidance to make sure that these mandates are followed. Special procedures must be followed when guidance deals with matters that could have an economic effect of over $100 million, including a notice-and-comment process. The rule also requires that all of the agency’s guidance be accessible in a public database and that the public has an opportunity to petition the agency to modify or withdraw it.

The rule applies to all guidance issued, modified or withdrawn after September 28, 2020. Employers should be aware of this rule, as it will apply to guidance issued by the DOL regarding benefits.

Promoting Regulatory Openness through Good Guidance Rule »
Guidance Database »