The Equal Employment Opportunity Commission (EEOC) has issued final regulations that implement the Pregnant Workers Fairness Act (PWFA) (enacted as part of the Consolidated Appropriations Act, 2023 (CAA-23)) (-- Fed. Reg. --- (Apr. 19, 2024); Pub. L. No. 117-328 (2022); EEOC press release (Apr. 15, 2024); regarding the CAA-23, see Legal Update, Year-End CAA-23 Legislation Extends Access to Telehealth Services). The PWFA regulations finalize proposed regulations issued in August 2023, which generated more than 100,000 comments (many of them form comments) from the regulated community over a 60-day comment period (88 Fed. Reg. 54714 (Aug. 11, 2023)).

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:

In issuing the final regulations, the EEOC addressed extensive comments received concerning the scope of abortion-related accommodations under the PWFA.

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:

(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).

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:

Relatedly, the EEOC indicated that the PWFA does not impose reasonable accommodations under which an employer would need to pay travel-related expenses for an employee to obtain an abortion (see Article, Group Health Plan Coverage Considerations for Employers After the Overturning of Roe v. Wade: Adding Travel and Lodging Benefits Under an Existing Group Health Plan).

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.

The EEOC added that its interpretation regarding abortion under the PWFA was consistent with the Pregnancy Discrimination Act of 1978 (PDA), under which employers are not required to pay for health plan benefits for abortion unless necessary to preserve a mother's life or if medical complications have arisen from abortion (42 U.S.C. § 2000e(k); see Practice Note, Health Plan Coverage of Surgical and Medication Abortion and Related Services: Health Plan Coverage of Abortion Under the Pregnancy Discrimination Act (PDA)). The EEOC also indicated that the Supreme Court's 2022 Dobbs ruling, holding that there is not a federal constitutional right to abortion, did not require a different regulatory interpretation of the phrase "pregnancy, childbirth, or related medical conditions" (Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022); see Legal Update, Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications).

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.

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.

For more information, see Abortion and Contraceptives Services for Group Health Plans Toolkit.