Pregnant Workers Fairness Act: EEOC's final rules include abortion accommodations

The U.S. Equal Employment Opportunity Commission on Monday issued a final rule for the Pregnant Workers Fairness Act, saying the regulation provides clarity and guidance to employers regarding their legal obligations to employees and job applicants experiencing pregnancy, childbirth or related medical conditions – as well as time off for abortions.

“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 Burrows said in a statement.

“At the EEOC, we have assisted women who have experienced serious health risks and unimaginable loss simply because they could not access a reasonable accommodation on the job,” Burrows added. “This final rule provides important information and guidance to help employers meet their responsibilities, and to jobseekers and employees about their rights. It encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.”

EEOC Commissioner Kalpana Kotagal added that “consistent with legislative intent, the EEOC’s regulation advances the promise that pregnant and postpartum workers should not have to choose between their health and a paycheck.”

But EEOC Commissioner Andrea Lucas, who voted against adopting the rule, said the agency has broadened “the scope of the statute in ways that, in my view, cannot reasonably be reconciled with the text.”

“At a high level, the rule fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction,” Lucas wrote.

“The Commission extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system,” she added. “And the results are paradoxical. Worse, the Commission chose not to structure the final rule in a manner that realistically allows for severability of its objectionable provisions from its reasonable and rational components.”

The PWFA went into effect in June, requiring employers to provide reasonable accommodations to an employee experiencing pregnancy, childbirth or related medical conditions. In August, the EEOC proposed rules to clarify key statutory terms such as “reasonable accommodation,” “undue hardship” and “pregnancy, childbirth or related medical conditions.”

The final rule provides many examples of “reasonable accommodations,” such as:

• additional breaks to drink water, eat or use the restroom;
• time off for health care appointments;
• temporary reassignment; and
• temporary suspension of specific job duties.

The rule provides guidance on reasonable accommodations for the limitations and medical conditions of employees and job applicants who experience “miscarriage or stillbirth; migraines; lactation; and pregnancy-related conditions that are episodic, such as morning sickness,” the EEOC stated.

Related: Pregnant Workers Fairness Act delivers new obligations for employers

Employers should not seek supporting documentation from an employee or job applicant unless the request is reasonable under the circumstances, the rule states.

Employers do not have to provide a reasonable accommodation if it causes the employer “undue hardship,” meaning significant difficulty or expense, the agency stated.

The EEOC added that encourages early and frequent communication between employers and workers to establish reasonable accommodations promptly.

The rule, which will go into effect on June 18, will be published in the Federal Register on Friday.