Less than one week after the U.S. Equal Employment Opportunity Commission (“EEOC” or the “Commission”) published its final rule (“Final Rule”) and interpretive guidance to implement the  Pregnant Workers Fairness Act (PWFA), seventeen states jointly filed a complaint seeking to enjoin and set aside the portions of the Final Rule providing for abortion-related accommodations. And just a few weeks later, two more states filed suit on the same grounds.

As discussed in more depth here, the PWFA requires covered entities to reasonably accommodate qualified employees and applicants with a “known limitation” related to “pregnancy, childbirth, or related medical conditions,” unless doing so would impose an undue hardship.  Although the PWFA itself does not define the phrase “pregnancy, childbirth, or related medical conditions,” as discussed here, the EEOC included a definition in its Final Rule implementing the PWFA on April 19, 2024, which will take effect on June 18, 2024. Under the Final Rule, the Commission defines “related medical conditions” as including “termination of pregnancy, including via miscarriage, stillbirth, or abortion.” Thus, the Final Rule permits workers to seek reasonable accommodations that could include leave for abortion-related care.

It is this inclusion of abortion in the Final Rule’s definition of “pregnancy, childbirth, or related medical conditions” that has driven Louisiana and Mississippi to file suit in the Western District of Louisiana (the “WDLA States”) and the following states, led by Arkansas and Tennessee, to file suit in the Eastern District of Arkansas (the “EDAR States”): Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia (collectively, the “Nineteen States”). After filing suit on April 25, 2024, the EDAR States filed a motion on May 3, 2024, seeking a stay of the effective date of the Final Rule and a preliminary injunction enjoining the EEOC from enforcing or implementing any protections under the PWFA related to abortions, which both lawsuits refer to as the “abortion-accommodation mandate,” pending judicial review of the EDAR States’ claims. Subsequently, on May 13, 2024, the WDLA States filed suit seeking the same relief. Ultimately, the Nineteen States seek a permanent injunction blocking the Commission’s implementation and enforcement of any provisions in the Final Rule requiring covered entities to provide any abortion-related accommodations.

Abortion-Related Accommodations in the EEOC’s PWFA Regulations and the Nineteen States’ Claims

In response to the Commission’s issuance of its proposed rule to implement the PWFA in August 2023, the EEOC received over 90,000 comments addressing the inclusion of abortion within its definition of “pregnancy, childbirth, or related medical conditions.” The Commission addressed these comments in the preamble to the Final Rule. The Commission noted that the Final Rule “does not regulate abortion or abortion procedures;” “require an employer to pay for, promote, or endorse abortion;” or “prescribe when, where, or under what circumstances an abortion can be obtained or what procedures may be used.” The Commission anticipates that “[i]f the issue of a PWFA accommodation regarding abortion arises, it will likely concern only a request by a qualified employee for leave from work.” Additionally, the EEOC specified that abortion-related leave under the PWFA can be unpaid unless the employer’s policy states otherwise. Given this, it is the Commission’s position that inclusion of abortion under its definition of a pregnancy-related medical condition does not conflict with “State laws that regulate the provision of abortions in certain circumstances.” The Commission also specified that any accommodations sought under the Final Rule related to abortion “remain subject to applicable exceptions and defenses, including both those based on religion and undue hardship.”

The EDAR States, however, contend that the EEOC’s inclusion of abortion within the definition of pregnancy-related medical conditions “force[s] States to effectively subsidize abortions sought by their workers” and “constru[es] the PWFA to encourage, and even coerce States and private employers to facilitate, abortions,” which the EDAR States assert is “[c]ontrary to the statute’s text and lawmakers’ express rejection of the idea that the PWFA could mandate abortion accommodations.” The EDAR States argue on these grounds that inclusion of abortion-related accommodations in the Final Rule exceeds the EEOC’s authority under the Administrative Procedures Act and is therefore invalid. Further, the EDAR States assert that inclusion of abortion-related accommodations in the Final Rule is unconstitutional under the Tenth Amendment, as it violates principles of federalism and state sovereignty “by strongarming States into promoting and implementing a federal preference for abortions that are illegal under state law,” and the Fourteenth Amendment, “by subjecting States to damages suits for failing to accommodate abortions contrary to state law.” Finally, the EDAR States argue that inclusion of abortion-related accommodations in the Final Rule is unconstitutional under the First Amendment because, in the EDAR States’ view, the Final Rule “require[s] that employers accommodate elective abortions” and thus “requires employers and their employees to speak and affirmatively engage in conduct in a way that facilitates abortion, even if contrary to regulated parties’ viewpoints and deeply held religious beliefs.”   

Similarly, the WDLA States challenge the EEOC’s authority to include any abortion-related accommodations in the Final Rule. The WDLA States accuse the EEOC of “smuggling abortion into the PWFA” and “transform[ing] the Act’s pro-pregnancy mandate into an anti-pregnancy mandate.” In addition, Louisiana Senator Bill Cassidy, a co-sponsor of the PWFA and a medical doctor himself, is quoted in the complaint as accusing the EEOC of “substitut[ing] its views on abortion for those of Congress.” Like the EDAR States, the WDLA States also contend that because “pregnancy- and fetal-life-ending procedures are illegal (with narrow exceptions) in Louisiana, Mississippi, and other States,” the Final Rule’s abortion-related accommodations run afoul of the Supreme Court’s holding in Dobbs v. Jackson Women’s Health Organization. The WDLA States further argue that “abortions themselves are not ‘medical conditions’ arising from pregnancy, but instead voluntary procedures that terminate pregnancy.” Thus, according to the WDLA States, because “abortion is a procedure, not a condition, and the PWFA requires reasonable accommodations only for conditions of pregnancy,” there is no basis for inclusion of any abortion-related accommodations in the Final Rule.

On May 1, 2024, the court entered a briefing schedule for filings in support and in opposition of the EDAR States’ request for a preliminary injunction, which is set to conclude on May 22, 2024, and will be followed by a hearing on the matter. A briefing schedule has not been set for the WDLA States’ case yet, but it is anticipated that this case will likewise move forward quickly in light of the June 18, 2024 effective date of the Final Rule.

What Employers Should Do Now

Although the future of the inclusion of abortion-related accommodations in the Final Rule remains unclear, at the time of this publication, the June 18, 2024 effective date of the Final Rule remains intact. Accordingly, regardless of whether they are located in one of  the Nineteen States that have joined these lawsuits, employers falling within the purview of the PWFA should prepare to comply with the Final Rule as published as of its effective date of June 18th, unless the Final Rule is stayed or deemed invalid prior to that date. We will continue to monitor and advise on any developments as they occur.

Janae Barrett, a Law Clerk - Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this article.

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