On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) published its final rule adopting an expansive view of what counts as a pregnancy-related condition that triggers employer accommodation obligations under the recently enacted Pregnant Workers Fairness Act (PWFA). Employers have 60 days to prepare before the new rule goes into effect.
The PWFA is a federal statute requiring most employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee,” whether or not the limitation meets the definition of a “disability” under the Americans with Disabilities Act. Under the PWFA, a temporary inability to perform a job’s essential functions doesn’t preclude a worker from being “qualified” for the job. Although the PWFA is relatively new, it somewhat aligns with the Supreme Court’s interpretation of the Pregnancy Discrimination Act (PDA) in Young v. UPS, 575 U.S. 206 (2015).
There has been some doubt about whether Congress followed proper procedures when it purportedly passed the legislation containing the PWFA. In February, a court blocked the federal government from enforcing the PWFA, but only as to the Texas government. For now, the statute remains binding on other employers with 15 or more employees.
The PWFA is enforced by the EEOC, so the EEOC’s interpretation of the statute is worth understanding. Consistent with its proposed rule unveiled last year, the EEOC’s final rule significantly broadens the scope of protections for workers. For example, the rule reads “pregnancy” to encompass “potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception).” More controversially, the rule interprets “related medical conditions” to include having or choosing not to have an abortion —an issue that generated more than 90,000 comments in the wake of the proposed rule. Accompanying the final rule are 78 case study examples of its application.
Religious employers and others with moral objections to abortion or certain contraception or infertility treatments have expressed concern about the final rule. Although neither the PWFA nor the EEOC’s final rule contains a categorical religious exemption, both include a “rule of construction” referencing religious liberty protections such as the Religious Freedom Restoration Act (RFRA), the ministerial exception, and the 702 exemption for religious employers under Title VII (arguably confirming that the 702 exemption is not limited to preferential religious hiring and firing). According to guidance accompanying the final rule, the EEOC will consider religious defenses asserted in response to charges under the PWFA on a case-by-case basis.
In any event, the final rule does not require employers to pay for abortions (e.g., via an employer-sponsored health plan) or reimburse travel-related expenses for an employee to obtain an abortion.
Employers everywhere — except the Texas government — should update their accommodation guidelines and practices in accordance with the final rule, while also taking into account state or local laws that may provide different or greater protections for pregnant or lactating workers. Employers with religious convictions or moral objections regarding abortion should be especially diligent to work with experienced legal counsel in crafting appropriate and defensible policies.
