EEOC’s Final Pregnant Worker Fairness Act Regulations Cover Abortion

Kollman & Saucier
Kollman & Saucier

On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) released its final regulations for the Pregnant Workers Fairness Act (PWFA). The regulations embrace a broad characterization of the PWFA’s use of the phrase “pregnancy, childbirth, or related medical conditions.”

Ultimately, the regulations cover current, past, and potential pregnancy. The EEOC’s adoption of a broad view does not come as a surprise. The initial proposal for the PWFA regulations, released in August in 2023, advanced the same expansive view that have been endorsed by the final regulations. Notably, both the proposed and final regulations cover “having or choosing not to have an abortion.”

Unsurprisingly, the abortion issue garnered the most attention during the comment process of the PWFA’s proposed regulations. The EEOC received 54,000 comments urging the exclusion of abortion from the definition of “pregnancy, childbirth, or related medical conditions,” compared to 40,000 supporting its inclusion.

Ultimately, the EEOC stuck with their original proposal and included abortion in the definition for three main reasons.

First, the type of accommodation that may be sought under the PWFA is limited. The law cannot be used to require employer-sponsored health care plans to cover abortions. Furthermore, an employer cannot be required to pay travel-related expenses related to an employee’s abortion.

The EEOC reasoned the most likely accommodation to be sought related to an abortion is “time off to attend a medical appointment or for recovery.” The PWFA does not require time off granted as an accommodation be paid unless the employer’s policies specify otherwise. In many cases, non-paid leave will not create an “undue hardship” for an employer—at least not in the way mandated paid-leave could.

Second, the EEOC stated that abortion is included in the definition of “pregnancy, childbirth, or related medical conditions” for a limited purpose. Abortion will only be considered when determining whether an employee qualifies for a workplace accommodation.

Third, many of the comments opposing the inclusion of abortion in the definition of “pregnancy, childbirth, or related medical conditions” were concerned with employer’s moral and religious objections to providing accommodations for employees seeking abortions.

In response, the EEOC noted that there have been very few cases of an employee requesting abortion-related accommodations and the employer denying the request for religious or moral reasons.

Since 1978, employers have been required by Title VII to provide sick leave in a non-discriminatory manner to “women affected by pregnancy, childbirth, or related medical conditions.” Therefore, the EEOC reasoned that, since 1978, employees have been permitted to use employer-provided time-off to receive abortion services.

Yet, the comments arguing against the inclusion of abortion were unable to point to a single Title VII case that ruled against the employer. This lack of case law indicates that including abortion in the final regulation will not pose much of an issue, if any, for employers.

The EEOC’s final regulations also provide guidance on how employers who are faced with charges of discrimination can assert religious defenses. Accommodations for abortions “remain subject to applicable exceptions and defenses, including both those based on religion and undue hardship.”

The regulations noted that the EEOC will begin including additional information on how to assert religious defenses for employers who receive charges of discrimination—perhaps an indication of future accommodation and religious conflicts the Commission anticipates under the its’ PWFA regulations.

The EEOC’s PWFA regulations will go into effect on June 18, 2024.

Written by Christina Charikofsky. Christina is a legal intern at Kollman & Saucier and a second-year student at the University of Baltimore School of Law.

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