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In an earlier article in the Cowles Thompson newsletter, I wrote about the Pregnant Workers Fairness Act, 42 U.S.C. 2000gg (PWFA). The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to “pregnancy, childbirth, or related medical conditions,” unless to do so would create an undue hardship for the employer. Essentially, the PWFA applies the same kind of reasonable accommodation standards established by the Americans With Disabilities Act (ADA) to pregnancy, childbirth, or related conditions (with the notable exception that under certain circumstances the regulation requires that in order to accommodate such limitations employers may be required to temporarily suspend essential job functions, a concept not contained in the ADA).

EEOC Implementing Regulations for the PWFA

The PWFA went into effect on June 27, 2023. As part of the law, the EEOC, which enforces the PWFA, was required to issue implementing regulations. After some delay, the EEOC issued its final regulation on April 15, 2024. Those regulations go into effect on June 18, 2024. In the regulations, 29 CFR 1636, the terms “childbirth, or related medical conditions” include “having or not having an abortion.” 29 CFR 1636.3(b).

The Preamble to the regulations states:

The Congressional Conference Report accompanying the PDA* provides: “Because [the PDA] applies to all situations in which women are `affected by pregnancy, childbirth, and related medical conditions,’ its basic language covers decisions by women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.

One of the anticipated forms of accommodation related to childbirth, pregnancy, or related medical conditions is unpaid time off. The Preamble to the regulations, which contains the EEOC’s responses to public comments and its rationale for the provisions of the regulations, states that “the type of accommodation that most likely will be sought under the PWFA regarding an abortion is time off to attend a medical appointment or for recovery.”

As might have been expected, a number of comments opposing inclusion of abortion as one of the conditions calling for reasonable accommodation were received. In partial response to those comments, the Commission pointed out that there is no absolute mandate to provide leave for abortion. Rather, an employer who receives a request from an employee for time off due to abortion, may raise certain defenses:

Consistent with the statutory text and Congress’ intent, the PWFA does not impose a categorical mandate on an employer to provide leave for an abortion. Leave, like any accommodation, is subject to applicable exceptions and defenses, including both those based on religion and on undue hardship.

Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29109 (Apr. 19, 2024) (to be codified at 29 C.F.R. 1636)

The PWFA and Potential Litigation

In this context, the history of the Affordable Care Act (ACA) mandate to provide contraception might be instructive. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the Supreme Court allowed employers, who had religious objections to providing contraception in their group health plans, to ignore the ACA mandate. It is certainly possible that the Supreme Court and many lower courts would allow employers to assert defenses based on religion to the abortion time-off accommodation requirement.

Inevitably, the question arises as to what happens in states like Texas, which not only effectively forbid abortion but also allow civil suits to be filed against people who have abortions and or facilitate abortions. In this respect, the EEOC simply punted. They said: “Any potential interaction or conflict between PWFA and State laws, including State laws that allow civil suits to challenge actions that private individuals claim aid in the provision of an abortion, will be addressed on a case-by-case basis. Of note, the PWFA does not require an employer to pay for an abortion, and neither does the regulation.”

I anticipate that there will be litigation intended to enjoin at least this portion of the regulations, if not the entire text.

* The Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k) (2024)

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Brian T. Farrington is a Shareholder and Section Head of the Cowles and Thompson Employment Law section. His practice consists of transactional work and litigation advising and representing management concerning employment law, and particularly in the areas of Fair Labor Standards Act and Equal Employment Opportunity laws. He consults with employers to assist them in compliance and to represent them in investigations by the U.S. Department of Labor, Wage and Hour Division. Brian also advises clients on compliance with state wage and hour laws and represents them in investigations by state Departments of Labor. He also advises on matters related to Texas Workforce Commission unemployment eligibility, government contracts labor standards (Davis Bacon Act, Service Contract Act), OSHA 11(c), and state wage payment laws. Brian has represented clients in litigation under the FLSA, Title VII, the ADEA, and the ADA. Prior to becoming an attorney, Brian spent 12 years working with the US Department of Labor Wage & Hour Division. He has served as an Expert Witness in FLSA employment matters, and is a trained employment-related mediator.