Nicole Karlis
Wed, April 17, 2024
Abortion clinic Gina Ferazzi / Los Angeles Times via Getty Images
This week, the Equal Employment Opportunity Commission (EEOC) finalized its Pregnant Workers Fairness Act regulations, after being criticized by conservative lawmakers and religious organizations. Part of the update included a clarification that accommodations, like a leave of absence, under the law apply to abortion care.
The EEOC said it received approximately 54,000 comments — “most of which were form or slightly altered form comments from individuals,” the agency said — urging them to exclude abortion from the definition of “pregnancy, childbirth or related medical conditions.” But abortion-related protections are consistent with Title VII of the 1964 Civil Rights Act, the EEOC said.
“In the final regulation, the Commission includes abortion in its definition of ‘pregnancy, childbirth, or related medical conditions,’ as proposed in the NPRM and consistent with the Commission’s and courts’ longstanding interpretation of the same phrase in Title VII,” the final rules concluded.
The law applies to all industries and employers with more than 15 employees. While the law passed in December 2022 and went into effect in the summer of 2023, it wasn’t until Monday that the EEOC released its final regulations and made a concentrated effort to clarify abortion care is included.
In the final document, the EEOC further elaborated by stating that the Pregnant Workers Fairness Act is a “workplace anti-discrimination law.” It doesn't mean that taxpayers and funding abortions or require that an employer-sponsored health plan has to cover a procedure. It simply means that, like the Americans with Disabilities Act (ADA), accommodations — like time off for an abortion procedure or to recover — must be granted, as long as accommodation is reasonable and don't post an undue burden on the employer.
Daphne Delvaux, an employment attorney and founder of The Mamattorney, a platform educating women on their rights at work, told Salon the rule ensures that employees who are pregnant, and might choose to terminate their pregnancy, “are able to continue participating in the workforce," by seeking reasonable accommodations from employers.
Delvaux emphasized that this doesn’t mean it’s “a categorical mandate to provide an abortion leave,” adding that some of the media coverage around the change has been “a bit misleading.”
“The employer has to provide time off for medical needs related to pregnancy and childbirth, of which abortion is one of them,” Delvaux told Salon, adding this was “already the law.”
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In a way, Delvaux said, the Pregnant Workers Fairness Act is an extension of the ADA. However, the ADA was “quite restrictive” for pregnant and postpartum workers.
“A lot of the employees wouldn't kind of meet that high bar of what constitutes a disability,” Delvaux said. “What the Pregnant Workers Fairness Act decided is that pregnancy and postpartum related conditions and limitations fall within accommodation laws.”
For instance, under the Pregnant Workers Fairness Act, a pregnant worker could have morning sickness and request time off because they feel sick or request the option to work remotely. A pregnant worker can also request time off, or any other reasonable accommodations, for fertility treatments, extreme fatigue, depression, insomnia, pelvic pain and more.
“What's different about the Pregnant Workers Fairness Act is that the law says that if the essential functions of the job can be done later, that they'd have to be temporarily suspended,” she said. “So that in and of itself kind of creates the potential of more leaves of absences. It’s kind of a new revolutionary thing — in the past, employees could ask for accommodations, but only if they could still perform the essential functions of the job.”
Notably, the law provides protections in states where abortion care is nearly banned and in states where people are being forced to travel to access care. For these pregnant workers, Delvaux said she wouldn’t necessarily recommend women explicitly stating they’re getting an abortion to their employers. Instead, she’d recommend saying that the worker experienced infant loss and doesn’t want to discuss it in more detail. This would require revealing the pregnancy in the first place, but that’s how employees can be protected by the law.
“Now, if we want to remove the taboo and stigma on abortion, you can absolutely be bold,” Delvaux said. “It's going to depend on the individual woman and also the workplace setting. And in progressive places, it might even be celebrated.”
Kimberly Inez McGuire, executive director of URGE (Unite for Reproductive and Gender Equity), told Salon that time off is one of the biggest barriers people face when trying to access both prenatal and abortion care. The Pregnant Workers Fairness Act, McGuire said, is a reminder that “pregnancy care and justice for pregnant people applies both for people who need abortion care and people who are looking to continue their pregnancies.”
“The struggles and the needs of pregnant people, whether they're going to become parents, or whether they need an abortion, are very deeply connected,” McGuire said. “I think it's important to consider legislative solutions and policy solutions that allow people who are pregnant to take time off for a whole range of reasons, whether that's to get an abortion, whether that's to get prenatal care, whether that's because someone has been put on bed rest because they have a high-risk pregnancy.”
Tami Luhby, CNN
Tue, April 16, 2024
Most employers must offer “reasonable accommodations” to workers related to pregnancy or childbirth, including providing time off for an abortion, according to a final rule issued Monday by the Equal Employment Opportunity Commission.
The rule clarifies the provisions of the Pregnant Workers Fairness Act, which became law last June after Congress passed it as part of a federal government spending package in late 2022. The measures apply to employers with at least 15 workers unless the accommodations would cause “undue hardship” for the employer.
The law provides pregnant and postpartum workers with a variety of protections, including time off for recovery from childbirth, prenatal or postnatal appointments and postpartum depression and accommodations related to seating, light duty, breaks for food, water and restroom needs, breastfeeding and miscarriage. Employers are not required to offer paid time off.
The question of including abortion in the act’s definition of “pregnancy, childbirth, or related medical conditions” sparked a flurry of comments to the commission, with about 54,000 of them urging the commission to exclude abortion and about 40,000 comments asking to include it.
The agency noted in the rule that the law cannot be used to require a job-based health plan to pay for any procedure, including an abortion. It specified that the act is a workplace anti-discrimination law.
“With respect to abortion, the PWFA’s requirements are narrow and will likely concern only a request by a qualified employee for leave from work,” the commission said in a statement.
The final rule clarifies to employers and workers who is covered, what types of limitations and medical conditions are covered and how workers can ask for reasonable accommodations. It also provides many examples of accommodations and encourages employers and workers to communicate early and frequently about the requests.
Advocates have been fighting to improve federal protections for pregnant workers for more than a decade, saying that the Pregnancy Discrimination Act is inadequate and that most pregnancy-related conditions are not considered disabilities under the Americans with Disabilities Act. The US Chamber of Commerce was among the supporters of the law.
“Today with these final rules, we have achieved a huge step forward for women’s economic security, maternal health, and the economy as a whole,” Dina Bakst, co-president of A Better Balance, a national legal advocacy organization, said in a statement. “The Pregnant Workers Fairness Act is a life-changing protection for pregnant and postpartum workers nationwide, ensuring they aren’t forced off the job or denied the accommodations they need for their health.”
Joseph Choi
Tue, April 16, 2024
The Equal Employment Opportunity Commission (EEOC) implemented a final rule on Monday requiring most employers to provide “reasonable accommodations” for workers experiencing limitations due to pregnancy, childbirth or other related conditions such as choosing to get an abortion.
The final rule implements the Pregnant Workers Fairness Act (PWFA) that was signed into law in 2022 and went into effect last year. It requires covered entities to provide “reasonable accommodations” relating to an employee’s pregnancy, childbirth or related medical conditions.
The PWFA does not require leave to be paid as part of these accommodations, though an employer can provide paid leave if their policies account for it. These accommodations are required unless providing them causes “undue hardship” on the operation of the business. Employers may cite their religion when seeking an exemption from the rule.
“Under the framework of this final rule, accommodations related to abortion — like all accommodations — remain subject to applicable exceptions and defenses, including both those based on religion and undue hardship,” the final rule states.
The EEOC considers related conditions to include lactation, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes or HELLP (hemolysis, elevated liver enzymes, low platelet count).
The EEOC provided examples of reasonable accommodations like breaks to eat, drink or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignments or suspension of some job duties; and time off to recover from childbirth, miscarriage or other conditions.
The law applies to “public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government.” The final rule will be published on April 19 and will be in effect 60 days after this date.
Employees who believe their employer has violated the PWFA can file charges with the EEOC. Remedies for violations can include lost wages, additional compensation for emotional distress as well as having their attorney fees covered.
“The Pregnant Workers Fairness Act is a win for workers, families, and our economy. It gives pregnant workers clear access to reasonable accommodations that will allow them to keep doing their jobs safely and effectively, free from discrimination and retaliation,” EEOC Chair Charlotte A. Burrows said in a statement.
“It encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.”
New rules for Pregnant Workers Fairness Act include divisive accommodations for abortion
CLAIRE SAVAGE and ALEXANDRA OLSON
Updated Mon, April 15, 2024
FILE - An exam room is seen inside Planned Parenthood on March 10, 2023, in Fairview Heights, Ill. Workers are entitled to workplace accommodations for abortions and some pregnancy-related conditions under the Pregnant Workers Fairness Act, according to federal regulations published Monday, April 15, 2024. (AP Photo/Jeff Roberson)
NEW YORK (AP) — Workers are entitled to time off and other job accommodations for abortions — along with pregnancy-related medical conditions like miscarriage, stillbirth and lactation — under the Pregnant Workers Fairness Act, according to finalized federal regulations published Monday.
The regulations provide guidance for employers and workers on how to implement the law, which passed with robust bipartisan Congressional support in December 2022 but sparked controversy last year when the Equal Employment Opportunity Commission included abortions in its draft rules. The language means that workers can ask for time off to obtain an abortion and recover from the procedure.
The EEOC says its decision to keep the abortion provisions in its final rules, despite criticism from some conservatives, is consistent with its own longstanding interpretation of Title VII, as well as court rulings. The federal agency added that the new law does not obligate employers or employer-sponsored health plans to cover abortion-related costs, and that the type of accommodation that most likely will be sought under the Pregnant Workers Fairness Act regarding an abortion is time off to attend a medical appointment or for recovery, which does not have to be paid.
The act requires most employers with 15 or more employees to provide "reasonable accommodations" for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions — including fertility and infertility treatments in some cases — unless the accommodation will cause the employer an undue hardship. The EEOC's regulations will go into effect on June 18.
Labor advocates hailed the new law as especially important for women of color who are most likely to work in low-wage, physically demanding jobs but are often denied accommodations for everything from time off for medical appointments to the ability to sit or stand on the job. Major business groups also supported the law, citing the need for clarity about the accommodations that employers are required to give pregnant workers.
“No one should have to risk their job for their health just because they are pregnant, recovering from childbirth, or dealing with a related medical condition,” said EEOC Chair Charlotte A. Burrows on Monday.
But Republican lawmakers and anti-abortion activists denounced the EEOC’s inclusion of abortion after the agency first released its proposed rule in August for a monthslong public commentary period. Abortion rights proponents, meanwhile, applauded the provision as critical at time when abortion rights have been curtailed in many states following the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade. The EEOC is composed of three Democratic commissioners and two Republican commissioners.
Sen. Bill Cassidy of Louisiana, the lead Republican sponsor of the Pregnant Workers Fairness Law, accused the Biden administration on Monday of "shocking and illegal" disregard of the legislative process to promote a political agenda. The Alliance Defending Freedom, a conservative Christian legal organization, said the Biden administration was trying to “smuggle an abortion mandate” into the law.
But in comments submitted to the EEOC, the American Civil Liberties Union applauded the agency for “recognizing that abortion has for decades been approved under the law as a ‘related medical condition’ to pregnancy that entitles workers to reasonable accommodations, including time off to obtain abortion care.”
The EEOC said it had received 54,000 comments urging the commission to exclude abortion from its definition of medical condition related to pregnancy, but it also received 40,000 comments supporting its inclusion. While the commission said it understood that both sides were expressing “sincere, deeply held convictions,” it cited numerous federal cases that it said supported its interpretation that abortion is a pregnancy-related condition deserving of protection.
The new rules include extensive details on the types of accommodations that pregnant workers can request, from temporary exemption from jobs duties like heavy lifting to considerations for morning sickness.
Women's right advocates had campaigned for years for the law, arguing that the 1978 Pregnancy Discrimination Act offered inadequate protection for pregnant workers. The 1978 law, which amended Title VII of the Civil Rights Act of 1964, prohibited discrimination on the basis of pregnancy and marked a major shift for gender equality at time when pregnant women were routinely denied or pushed out of jobs.
But in order to receive workplace accommodations, pregnant women had to demonstrate that co-workers had received similar benefits for comparable needs, since the act stated only that pregnant workers must be treated similarly to other employees, not that they deserved special consideration. That put a burden of proof that many women found impossible to meet, forcing them to work in unsafe conditions or quit their jobs, according to A Better Balance, one of the most vocal advocates for the Pregnant Workers Fairness Act.
The new law makes clear that that pregnant workers are entitled to accommodations to keep doing their jobs, mirroring the process for workers with disabilities. It places the burden on employers to prove “undue hardship” if they deny requests for modifications.
The EEOC typically handles between 2,000 and 4,000 pregnancy discrimination charges a year, many involving denial of workplace accommodations. A study conducted by A Better Balance found that in two-thirds of pregnancy discrimination cases that followed the 2015 Supreme Court ruling, courts determined the employers were allowed to deny accommodations under the Pregnancy Discrimination Act.
In a prepared statement, A Better Balance Co-President Dina Bakst applauded the EEOC “for issuing robust final regulations that appropriately recognize the broad scope of the Pregnant Workers Fairness Act.”
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US employers must accommodate abortions, birth control, agency says
Mon, April 15, 2024
By Daniel Wiessner
(Reuters) - U.S. employers' obligation to accommodate workers' pregnancies also extends to abortions and the use of contraception, the U.S. agency that enforces workplace discrimination laws said on Monday.
The U.S. Equal Employment Opportunity Commission (EEOC) unveiled a rule to implement the Pregnant Workers Fairness Act, a law that Congress passed with bipartisan support and the backing of major business groups in 2022.
The law requires employers to alter job duties or give time off to workers with "limitations related to ... pregnancy, childbirth, or related medical conditions."
The commission's rule, which was proposed last year, has drawn criticism from some Republicans and religious groups who say the law's protections should not extend to workers who choose to have abortions or take birth control, or that if it does, religious employers should be eligible for an exemption.
A group of Republicans in Congress suggested in comments to the EEOC that the lack of a religious exemption could form the basis of a legal challenge to the rule.
Rep. Virginia Foxx, a Republican from North Carolina, said on Monday the EEOC exceeded its authority by adopting the rule.
"The term ‘abortion’ is not once mentioned in the law," Foxx said in a statement. "Instead of following congressional intent, the Biden administration is using the regulatory process to advance radical policy goals."
The EEOC's five members are appointed by the president, but the agency functions independently from the White House.
The rule will be formally published on Friday and will take effect 60 days later.
The 2022 law requires U.S. employers with 15 or more employees to provide reasonable accommodations to pregnant workers. Previously, federal law only required those accommodations if employers also gave them to employees with injuries or medical conditions.
The EEOC rule's list of accommodations that workers may seek includes limits on heavy lifting, part-time work schedules, additional breaks to drink water and use restrooms, modified equipment and uniforms, seating, remote work, and paid or unpaid leave.
Workers may also ask to be relieved of certain essential functions of their jobs, as long as they can resume performing them after a pregnancy, the EEOC said.
Business groups and other critics of the rule have said that providing accommodations such as seating and additional breaks sounds simple, but can be impractical for many jobs and workplaces.
The U.S. Chamber of Commerce and other groups told the EEOC last year that whether specific accommodations are appropriate should be considered on a case-by-case basis. And once temporary accommodations are granted to pregnant workers, employers should be permitted to periodically request documentation showing that they are still necessary, the groups said.
Many worker advocacy groups supported the regulations. A Better Balance, which advocates for work-life balance measures, said the broad EEOC rule would remove various obstacles to women staying in the workforce when they are pregnant and after they give birth.
"Today with these final rules, we have achieved a huge step forward for women’s economic security, maternal health, and the economy as a whole," the group's co-president, Dina Bakst, said in a statement.
In February, a Texas federal judge agreed with the Republican-led state that the pregnancy bias law was invalid because it was included in a $1.7 trillion government funding bill that was not properly passed.
The judge blocked the EEOC from enforcing the rule against the state in its role as an employer. The commission in a March filing said it would comply with the ruling and did not indicate whether it would appeal.
(Reporting by Daniel Wiessner in Albany, New York, Editing by Alexia Garamfalvi and Josie Kao)
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