Final EEOC Protections for Pregnant Workers Cover Abortion (1)

The Equal Employment Opportunity Commission has finalized its Pregnant Workers Fairness Act regulations, leaving in place controversial protections for workers who require abortion-related accommodations.

The agency’s final rules issued on Monday reinforce the broad view of “pregnancy, childbirth, or related medical conditions” put forth in its initial August 2023 proposal that encompasses current, past, and potential pregnancy. The rules will go into effect 60 days after publication in the Federal Register.

They cover lactation, miscarriage, stillbirth, and “having or choosing not to have an abortion” as readily apparent medical conditions related to pregnancy or childbirth.

When EEOC proposed the regulations last year, the agency faced pushback from some employers and conservative lawmakers who said the commission inappropriately broadened the scope of the PWFA beyond Congress’ intent. The agency received over 100,000 comments in response to its proposed regulations, more than 96,100 of which mentioned abortion, according to a Bloomberg Law review.

A bipartisan majority in the Senate and House passed the law in 2022, marking the first time anti-bias protections for pregnant Americans have been updated since the 1978 Pregnancy Discrimination Act. It requires employers to provide their employees with “reasonable accommodations” for conditions related to pregnancy and childbirth.

The final rules also include examples of reasonable accommodations for workers, such as water, food, or restroom breaks; telework; temporary reassignments; and time off for healthcare appointments or to recover from childbirth or miscarriage. They say that employers should only seek supporting documentation for accommodations when reasonable.

The PWFA bill’s main sponsor, Sen. Bob Casey (D-Pa.), told colleagues during its passage that the EEOC wouldn’t include provisions for abortion leave as mandatory in its regulations.

“It defies common sense, and Congress’ intent, that EEOC continues to inject abortion into a law specifically aimed at promoting healthy childbirth,” he said in a statement on Monday.

The PWFA went into effect in June 2023, and the EEOC began accepting discrimination charges under the law. The agency was required to finalize PWFA rules by Dec. 29, 2023, but its five-member leadership panel didn’t vote on the regulations until April 3.

The commission’s Democratic majority approved the rules on a 3-2 vote along party lines, according to a source close to the commission.

One of the commissioners who voted against the final regulations, Republican Andrea Lucas, in an April 3 statement released Monday explaining her decision said that the EEOC rules improperly broaden the statute and “cannot reasonably be reconciled with the text” of the PWFA.

Agency Addresses Abortion

The EEOC said when publishing the PWFA draft regulations in August 2023 that the abortion-related protections were consistent with Title VII of the 1964 Civil Rights Act.

“Since 1979, through both Republican and Democratic administrations, the Commission has consistently interpreted the term ‘pregnancy, childbirth, or related medical conditions’ in Title VII to include the decision to have or not to have an abortion,” Victor Chen, an agency spokesperson, said in an emailed statement.

The commission said in its final rules that individuals may object to abortion’s inclusion due to “sincere, deeply held convictions” that are often part of their religious beliefs.

“The Commission also received many comments that expressed deeply held beliefs, including religious beliefs, that abortion is a necessary part of health care and that an employer’s religious beliefs should not dictate an employee’s ability to receive a reasonable accommodation under the PWFA,” the final rules said.

Because the PWFA doesn’t regulate the provision of abortion services, doesn’t require taxpayers to pay for abortions, and can’t be used to require employer-sponsored health plans to pay for abortion, related accommodations will likely be time off to attend medical appointments or for recovery, the rules said.

Leave will be unpaid unless the employer’s policies dictate otherwise, according to the final regulations.

The final rules also guide employers on how they can assert religious and other objections to the accommodation requirements if an employee files a discrimination charge against them.

“We’re also revising a number of documents, including our notice of charge of discrimination letter that goes out to employers, when a charge comes as well as the web pages to really identify for employers how they can include any religious defense in response to a charge of discrimination that may come in,” EEOC Chair Charlotte Burrows, a Democrat, said at a press conference on the PWFA Monday.

Tensions with States

Several states have implemented abortion bans following the 2022 US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, raising further questions about the PWFA rules’ application across the country.

“State laws that regulate the provision of abortions in certain circumstances do not conflict with covered entities’ obligations under the PWFA,” given that the likely accommodation will be leave from work, the EEOC regulations say.

Kalpana Kotagal, a Democrat EEOC commissioner, said in an interview with Bloomberg Law Monday the agency will have to deal with state laws on a case-by-case basis.

“State and local governments are covered employers and are required to provide accommodations under the PWFA, absent undue hardship,” according to the final rule.

In February, a federal judge prohibited the enforcement of the PWFA in Texas against employees of the state, saying that the law was passed under Covid-19 era proxy voting procedures were in place that violated the US Constitution’s quorum requirements.

Burrows said the agency will be “actively providing additional guidance and information to the public about the new rule in the very near future,” including a document to assist small businesses, webinars, and additional reading.