To add to a very busy two weeks of employment law developments, on April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final rule and interpretative guidance to implement the Pregnant Workers Fairness Act (PWFA).  The final rule was published in the Federal Register on April 19, 2024, and will become effective 60 days after publication—June 18, 2024. However, on April 25, 2024, Republican state attorneys general from 17 states[1] filed a lawsuit against the EEOC in the United States District Court for the Eastern District of Arkansas, claiming that because the PWFA encompasses abortion-related protections it is, therefore, unconstitutional.[2] 

You may recall, the PWFA requires public or private employers with 15 or more employees to provide “reasonable accommodations” to employees related to pregnancy, childbirth, or related medical conditions unless the accommodation would cause the employer an undue hardship.  Accommodations could include providing the ability for a pregnant worker to sit or drink water while working; receive additional break time to use the bathroom, eat, and rest; or allowing the employee to take leave or time off for medical appointments and/or to recover from childbirth. While this may sound familiar to the accommodations provided under the Americans with Disabilities Act (“ADA”) to disabled employees, pregnancy itself was never considered a disability under the ADA, leaving pregnant employees without a federal accommodation law.  However, in the meantime, many states announced their own laws providing accommodations and protections to pregnant employees and for medical conditions resulting from pregnancy. 

Notably, the PWFA does not replace any state or local laws that provide greater protections to employees, and the law only applies to accommodations as there are other federal and state laws making it illegal to fire or otherwise discriminate against workers based on pregnancy, childbirth, or related medical conditions.   

The EEOC began accepting charges of discrimination on June 27, 2023, the day the PWFA became effective last year.  The final rule provides guidance to employers to meet their responsibilities under PWFA as well as to job applicants and employees about their rights under the relatively new federal law.  Some highlights include:

• Examples of possible reasonable accommodations for requests under the PWFA;
• Guidance and encouragement of communications between employers and employees via an interactive process to resolve reasonable accommodations requests;
• Clarification that an employer does not need to seek supporting documentation for a reasonable accommodation request and should only do so when reasonable under the circumstances; and
• Further explanation of when an accommodation would create an undue hardship on an employer.

Despite the PWFA receiving bipartisan support, the EEOC’s stance on abortion quickly became a controversial point when it released its Notice of Proposed Rulemaking in August 2023.  The final rule includes a lengthy discussion, noting the substantial number of comments it received on the inclusion of abortion within the definition of “pregnancy, childbirth or related medical condition” and the reason it was included in the EEOC’s interpretation.  The EEOC stated that the PWFA is a workplace anti-discrimination law, and it does not regulate or require and employee to have an abortion, nor require taxpayers or an employer to pay for an abortion or travel-related expenses for an employee to have an abortion.  “Given these limitations, the type of accommodations that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.  The PWFA, like the ADA, does not require that leave as an accommodation be paid leave, so leave will be unpaid unless the employer’s policies provide otherwise.” Thus, the inclusion of abortion is meant to be “consistent with the Commission’s and courts’ longstanding interpretation of the same phrase in Title VII” and the meaning of the text of the PWFA.

Notwithstanding, the state attorneys general plaintiffs argue that the PWFA legislation was not intended to accommodate abortions and”[l]awmakers emphasized that the PWFA did not and could not be read to require employers to accommodate employees’ abortions.”  As a result, “[r]equiring that States create unprecedented accommodations for women seeking abortions, irrespective of whether a woman has a pregnancy related medical condition would irreparably harm Tennessee, Arkansas, and their co-plaintiff States.” In addition, plaintiffs argue that that the EEOC’s abortion accommodation “fundamentally infringes on the sovereignty of the States” because the plaintiffs are states that have prohibited or limited abortion with “rare exceptions.” Thus, the plaintiffs argue that the EEOC’s abortion accommodation exceeds the EEOC’s authority and is, therefore, invalid under the Administrative Procedures Act, 5 U.S.C. § 706(2), is unconstitutional under the Tenth Amendment by violating the principles of federalism and state sovereignty, unconstitutional under the Fourteenth Amendment by subjecting states to damages for failing to accommodate abortions contrary to state law, and unconstitutional under the First Amendment’s protection of speech and religious liberty.  As a result, the plaintiffs are seeking relief under the Declaratory Judgment Act, to declare that the “PWFA does not authorize EEOC to impose the Final Rule’s abortion-accommodation mandate.” The lawsuit also asks the court to enter a preliminary injunction to enjoin the EEOC from enforcing or implementing the final rule’s abortion accommodation pending final judgment by the court on the plaintiffs’ claims. 

Given this recent development, it remains unclear what the future holds for the EEOC’s final rule and its interpretative guidance.  However, this lawsuit, at the time of publication, does not change the employer’s obligation to comply with the PWFA.  Employers who fall within the protections of the PWFA should ensure that they are complying with the PWFA and, until a court holds otherwise, abide by the EEOC’s interpretation to ensure compliance in the event they are faced with a charge of discrimination alleging a violation of the PWFA.  

[1] The state attorneys general represent Tennessee, Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.   

[2] See States of Tennessee, Arkansas et al. v. Equal Employment Opportunity Commission, No. 2:24-cv-84-DPM (E.D. Ark. April 25, 2024).