Pregnant Workers Fairness Act includes abortion provisions
Finalized rules from the EEOC also cover miscarriage, stillbirth, lactation and other medical conditions.
NEW YORK — Employees are entitled to workplace accommodations for abortions — as well as other pregnancy-related medical conditions, such as miscarriage, stillbirth and lactation — under the Pregnant Workers Fairness Act, according to finalized federal regulations published this week.
The regulations provide guidance for employers and workers on how to implement the law, which passed with robust bipartisan congressional support in December 2022 but sparked controversy last year when the Equal Employment Opportunity Commission included abortions in its draft rules. The language means that workers can ask for time off to obtain an abortion and recover from the procedure.
The EEOC says its decision to keep the abortion provisions in its final rules, despite criticism from some conservatives, is consistent with its long-standing interpretation of Title VII of the Civil Rights Act of 1964, as well as court rulings.
The federal agency added that the new law does not obligate employers or employer-sponsored health plans to cover abortionrelated expenses, and that the type of accommodation regarding abortion that is most likely to be sought is time off to attend a medical appointment or for recovery, which does not have to be paid.
The act requires most businesses with 15 or more employees to provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth or related medical conditions — including, in some cases, fertility treatments — unless the accommodation will cause the employer undue hardship.
The EEOC’s regulations, which will be used as a framework to enforce the law, will take effect June 18.
Labor advocates hailed the law as especially important for women of color who are most likely to work in low-wage, physically demanding jobs but are often denied accommodations for taking time off for medical appointments or sitting on the job. Major business groups also supported the law, citing the need for clarity about the accommodations employers are required to give pregnant workers.
“No one should have to risk their job for their health just because they are pregnant, recovering from childbirth or dealing with a related medical condition,” said EEOC Chair Charlotte A. Burrows.
But Republican lawmakers and antiabortion activists denounced the EEOC’s inclusion of abortion after the agency first released its proposed rule in August for a months-long public commentary period.
Abortion rights proponents, meanwhile, applauded the provision as critical at a time when rights have been curtailed in many states after the Supreme Court’s 2022 decision to overturn Roe vs. Wade.
The EEOC comprises three Democratic commissioners and two Republican commissioners.
Sen. Bill Cassidy of Louisiana, the lead Republican sponsor of the Pregnant Workers Fairness Act, accused the Biden administration in August of “going rogue” with the regulations, which he said disregarded the intent of the law “to inject a political abortion agenda.” The Alliance Defending Freedom, a conservative Christian legal organization, said the Biden administration was trying to “smuggle an abortion mandate” into the law.
But in comments submitted to the EEOC, the American Civil Liberties Union applauded the agency for “recognizing that abortion has for decades been approved under the law as a ‘related medical condition’ to pregnancy that entitles workers to reasonable accommodations, including time off to obtain abortion care.”
The EEOC said it had received 54,000 comments urging the commission to exclude abortion from its definition of medical conditions related to pregnancy,
but it also received 40,000 comments supporting its inclusion. Though the commission said it understood that both sides were expressing “sincere, deeply held convictions,” it cited numerous federal cases that it said supported its interpretation that abortion is a pregnancy-related condition deserving of protection.
The new rules include extensive details on the types of accommodations that pregnant workers can request, including temporary exemption from job duties such as heavy lifting and considerations for morning sickness.
Women’s right advocates had campaigned for years for the law, arguing that the 1978 Pregnancy Discrimination Act offered inadequate protection for pregnant workers. The 1978 law, which amended Title VII, prohibited discrimination on the basis of pregnancy
and marked a major shift for gender equality at a time when pregnant women were routinely denied or pushed out of jobs.
But in order to receive workplace accommodations, pregnant women had to demonstrate that coworkers had received similar benefits for comparable needs, since the act stated only that pregnant workers must be treated similarly to other employees, not that they deserved special consideration. That established a burden of proof that many women found impossible to meet, forcing them to work in unsafe conditions or to quit their jobs, according to A Better Balance, one of the most vocal advocates for the Pregnant Workers Fairness Act.
The new law makes clear that pregnant workers are entitled to accommodations to keep doing their jobs, mirroring the process for workers
with disabilities. It places the burden on employers to prove “undue hardship” if they deny requests for modifications.
The EEOC typically handles between 2,000 and 4,000 pregnancy discrimination charges a year, many involving denial of workplace accommodations. A study by A Better Balance found that in two-thirds of pregnancy discrimination cases that followed a 2015 Supreme Court ruling, courts determined that the employers were allowed to deny accommodations under the Pregnancy Discrimination Act.
A Better Balance CoPresident Dina Bakst applauded the EEOC “for issuing robust final regulations that appropriately recognize the broad scope of the Pregnant Workers Fairness Act.”