The Equal Employment Opportunity Commission (EEOC) has issued final regulations to implement the Pregnant Workers Fairness Act (PWFA). Under the PWFA, employers generally must provide employees reasonable accommodations regarding employees' known limitations related to pregnancy, childbirth, or related medical conditions.
Effective beginning in June 2023, the PWFA generally requires covered employers with 15 or more employees to provide reasonable accommodations to qualified employees or applicants for known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (unless the accommodation would result in undue hardship to the employer's business operations) (42 U.S.C. § 2000gg-1; see Practice Note, Discrimination: Overview: PWFA).
In issuing the final regulations, the EEOC offered clarifications concerning:
Who is covered under the PWFA and final regulations.
The kinds of limitations and medical conditions that are covered.
Examples of reasonable accommodations for PWFA purposes.
How individuals may ask for reasonable accommodations.
In issuing the final regulations, the EEOC addressed extensive comments received concerning the scope of abortion-related accommodations under the PWFA.
Applicability to Employer-Sponsored Health Plans
The EEOC's PWFA proposed regulations specifically addressed the scope of limitations and medical conditions for which employees or applicants may seek reasonable accommodations under the PWFA. In the proposed regulations, the EEOC gave the phrase "pregnancy, childbirth, or related medical conditions," the same meaning as under Title VII of the Civil Rights Act of 1964 (Title VII).
The PWFA final regulations define "pregnancy" and "childbirth" as the pregnancy or childbirth of a specific employee, including:
Pregnancy, past pregnancy, and potential or intended pregnancy (including infertility, fertility treatment, and the use of contraception).
Labor and childbirth (including vaginal and cesarean delivery).
(29 C.F.R. Part 1636.3(b) (PWFA-specific definitions).)
The final regulations also define related medical conditions for PWFA purposes to incorporate a lengthy, non-exhaustive list of conditions that includes termination of pregnancy (abortion).
Scope of Contraceptives Under Final Regulations
Regarding contraception, the EEOC noted in the final regulations' preamble that under the PWFA, depending on the facts, a limitation concerning contraception that impacts an employee's potential pregnancy can be the basis for an accommodation request. (The final regulations do not define contraceptives for this purpose by cross-reference to the Affordable Care Act's (ACA's) meaning of that term (see Practice Notes, Contraceptives Coverage Under the ACA: Overview and Contraceptives Coverage Under the ACA: Accommodations and Other Issues).) According to the EEOC, whether a particular set of facts supports the requisite link between contraception and an individual's pregnancy will be determined on a case-by-case basis.
Inclusion of Abortion in Meaning of Pregnancy, Childbirth, or Related Medical Conditions
More than half of the comments received in response to the EEOC's PWFA proposed regulations addressed the inclusion of abortion in the regulations' definition of "pregnancy, childbirth, or related medical conditions." Although the final regulations continue to include abortion in defining this phrase, the EEOC clarified the PWFA's scope in this context. Specifically, the EEOC indicated that the PWFA:
Is an employment anti-discrimination law.
Does not govern the provision of abortion services or affect whether (and under what circumstances) abortion should be allowed.
Because of these limitations, the EEOC indicated that the most likely kind of abortion-related accommodation request from an employee under the PWFA final regulations would be time off to attend a medical appointment or for recovery. The EEOC also observed that the PWFA (as with the Americans with Disabilities Act (ADA)) does not require accommodation leave to be paid, meaning that abortion leave can be unpaid unless an employer's policy provides otherwise.
In finalizing the PWFA regulations, the EEOC therefore continued to include decisions to have (or not have) abortions in the phrase "pregnancy, childbirth, or related medical conditions" under the regulations.
Practical Impact
Employers that sponsor health plans may find the EEOC's clarifications on the scope of the PWFA final regulations regarding abortion useful in the shifting post-Dobbs legal landscape. According to the EEOC, the final regulations do not mandate when, where, or under what circumstances an abortion can be obtained. If an issue concerning a PWFA accommodation arises in the abortion context it will likely involve a qualified employee's request for a leave from work. As a result, the regulations should rarely—in the EEOC's view—conflict with an employer's responsibilities under state laws governing the provision of abortion.