EEOC issues final rules on the Pregnant Workers Fairness Act
The U.S. Equal Employment Opportunity Commission says that abortion-related accommodations are included under the Pregnant Workers Fairness Act. The final version of the EEOC’s rule for implementing the PWFA was released Monday.
The PWFA, passed by Congress in 2022, was a significant step in protecting the rights of pregnant workers. It requires employers to provide “reasonable accommodations” for workers with limitations relating to “pregnancy, childbirth or related medical conditions” unless the accommodation would result in an undue hardship for the employer. The rules only apply to employers with at least 15 employees.
According to the EEOC, examples of reasonable accommodations include: “Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom; changing food or drink policies to allow for a water bottle or food; changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing.” More substantial accommodations include providing opportunities for pregnant workers to telework, take leave, or receive a temporary reassignment.
Today, the EEOC issued its final regulation to carry out the law, which officially goes into effect 60 days from April 19, 2024. The new rules state that abortion accommodations are included in “pregnancy, childbirth or related medical conditions” that are covered by the law. When the EEOC first proposed the new rules, including abortion accommodations, some employers and conservative lawmakers objected, claiming the agency expanded the regulations beyond what Congress intended.
Last August, the EEOC published the proposed rules and asked for feedback. The commission received more than 100,000 comments, with over 96,100 of them discussing abortion, a Bloomberg Law study found.
In their final report, the EEOC acknowledges the comments they received on both sides of the abortion issue and dedicates hundreds of pages to addressing each of these concerns. “Many of the comments urging the commission to exclude abortion from the definition of ‘pregnancy, childbirth, or related medical conditions’ expressed the view that abortion is the destruction of a human life, that it is objectionable for moral or religious reasons, and that it is not health care. The commission recognizes these are sincere, deeply held convictions and are often part of an individual’s religious beliefs,” they write in their final rule.
They add, “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 EEOC makes it clear that they are not requiring any employers or health care providers to provide or pay for abortions or any travel-related expenses. The abortion accommodations covered under PWFA would typically include allowing time off for the procedure and recovery. The commission also stated that it will also consider religious objections to providing abortion accommodations on a case-by-case basis.
Putting the abortion debate aside, the PWFA will make a significant contribution to ensuring that pregnant workers can stay on the job. The law updates the Pregnancy Disability Act, passed in 1978. Prior to the passage of PWFA, workers were required to prove that their employer accommodated others who were similar in their ability or inability to work. One study found that courts sided with the employer in two-thirds of lawsuits brought by pregnant workers since 2015. The primary reason for these losses was confusion about which workers were sufficiently similar to trigger the Pregnancy Disability Act’s protections.
According to the ACLU, even simple accommodations were often refused. “Under the pre-PWFA landscape, although the majority of pregnant workers report needing at least one form of modest accommodation, such as more frequent bathroom breaks or a schedule change, roughly a quarter report being unable to obtain them,” writes the ACLU.
Women comprise 57% of the workforce and 86% will have at least one pregnancy. Many will work until late in their pregnancies and return after delivery. Thirty states already had versions of PWFA on the books, and the new legislation will ensure that all pregnant workers can receive reasonable accommodations, and that careers won’t be sidelined by a pregnancy.
