United States: What To Expect When Expecting The EEOC's Finalized Regulations For The Pregnant Workers Fairness Act

After much anticipation, on April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final rule and guidance implementing the Pregnant Workers Fairness Act (PWFA).

You can read all 408 pages here.

Employment lawyers have been waiting for the final rule all year!

These regulations did not disappoint. They are full of public comments on almost every word on the PWFA, the Commission's response to each point of view, and some more examples.

One huge head turner: the EEOC's determination that abortion is covered by the PWFA.

Let's Back The Truck Up. What Is The PWFA?

The PWFA provides a framework that enables (friendlier than "requires") employers with at least 15 employees to provide a reasonable accommodation for an employee's known limitations relating to (or arising out of or affected by) pregnancy, childbirth or "related medical conditions," unless doing so causes an employer undue hardship or burden.

If "reasonable accommodation" or "undue hardship" language sounds familiar to you — it is! The Americans With Disabilities Act (ADA), which requires employers to make reasonable accommodations for disabled workers, poses as a model for the PWFA.

And, the language "pregnancy, childbirth, or related medical conditions," is the same as the language in the definition of "sex" in Title VII of the Civil Rights Act of 1964 (Title VII).

As I wrote about here, pregnancy discrimination is a type of sex discrimination. In fact, the Pregnancy Discrimination Act (PDA) is an amendment to Title VII.

With me so far? Ok.

Sounds Simple, Right? It Depends On How You Define Pregnancy, Childbirth, or Related Medical Conditions.

The regulations include abortion, specifically, in the definition of pregnancy, childbirth, or a related medical condition.

The EEOC emphasized that the statute does not regulate the provision of abortion services or affect whether and under what circumstances an abortion should be permitted. It does not require any employee to have—or not have—an abortion, does not require taxpayers to pay for any abortions, and does not compel health care providers to provide any abortions.

The EEOC clarified that the PWFA does not require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment, including an abortion.

Really, the statute says this—42 U.S.C. 2000gg–5(a)(2) provides that nothing in the PWFA shall be construed "by regulation or otherwise, to require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment."

Further, the PWFA does not require reasonable accommodations that would cause an employer to pay any travel-related expenses for an employee to obtain an abortion – or prohibit an employer from doing so.

Given these limitations, the EEOC forecasts that the accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery. It rationalizes that very few employers have been in a situation where an employee says "hey, I'd like 2 weeks off for an abortion," and the employer rejects the leave request on religious or moral grounds.

The Commission interprets "pregnancy, childbirth, or related medical conditions" to have the same meaning in the PWFA as it does under Title VII of the Civil Rights Act of 1964.

Isn't Abortion the Opposite of Pregnancy?

The EEOC explains that by definition, individuals who decide to have or not have an abortion are pregnant.

That's why "childbirth" is separate from "pregnancy."

Photo by freestocks on Unsplash

The EEOC broadly explains that the term "pregnancy" naturally includes all of those limitations arising out of the pregnancy itself, regardless of whether any particular pregnancy ends in miscarriage, live birth, an abortion, or any other potential outcome.

While the PWFA focuses on accommodation, the EEOC determined that the plain language of the PWFA and the ADA state and the Supreme Court has reiterated, accommodations are a form of nondiscrimination.

How Is The Commission's Decision To Include Abortion Affected by the Decision in Dobbs v. Jackson?

The EEOC regulations remind us that Dobbs v. Jackson did not involve, and the Supreme Court of the United States did not discuss employment protections under Title VII in that decision.

In Dobbs, SCOTUS interpreted constitutional provisions. By contrast, here, the EEOC interprets and implements rules involving a statute.

Big difference.

And, the legislature enacted the PWFA after the Dobbs decision and chose to keep the "pregnancy, childbirth, or related medical conditions" language that it used in Title VII.

And There Is Much, Much More.

We have barely scratched the surface here. The PWFA final regulations are broad and contain many more interesting facets. Here are just a few:

• PWFA limitations also may be ADA disabilities;
• But an employee need not have an impairment that substantially limits a major life activity to be entitled to a reasonable accommodation under the PWFA;
• No "magic" words are needed to request accommodations under the PWFA, but employers can request documentation (just keep it minimal);
• The EEOC provides detailed examples of reasonable accommodations for various medical conditions arising out of pregnancy;
• Informing the employer of a limitation and the need for accommodations should not be complicated; employees should be able to just communicate with the manager or supervisor with whom they would normally consult if they had questions or concerns about work matters; and
• Employers may have to temporarily suspend an employee's essential functions, and the EEOC defines "temporary" as "lasting for a limited time, not permanent, and may extend beyond 'in the near future.'" What does this mean? We don't always know. But because an employee won't be pregnant for more than 40 weeks, at most, the request to temporarily suspend an essential function is finite - it won't be more than 40 weeks. To define "in the near future" as any less than generally 40 weeks defeats the purpose.

  Employer Takeaways

  Clearly, there is A LOT to unpack here. And we have you covered. Please join my employment law partner Eric Meyer and I for a Zoom webinar on Friday, April 19, 2024, at noon ET to discuss the regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.