New rules add clarity to Pregnant Workers Fairness Act

New rules clarify how the government can enforce the Pregnant Workers Fairness Act when it comes to requiring employers to make accommodations for pregnant workers and providing a framework for how to deal with other issues such as lactation.

The Equal Employment Opportunity Commission’s final rules, published on April 15, are considered by many to be a win over discrimination against pregnant workers. But some oppose provisions that offer time off and other job accommodations for abortions.

In fact, Indiana and 16 other Republican states are suing the EEOC, claiming the law’s “protections for pregnancy do not authorize EEOC to require employers to accommodate elective abortions.”

What the law does

Under the law passed in 2022, most private employers and public sector employers with 15 or more employees, must make reasonable accommodations for their employees unless the employer can show the accommodations would impose an “undue hardship” on them.

These “reasonable accommodations” can include daily adjustments like allowing more bathroom breaks, letting the employee have water and snacks at their desk and changing a uniform or dress code but also include offering telework and leave for medical appointments.

“Undue hardship” means the accommodation would cause the employer great difficulty or a significant expense.

The employer also cannot require the employee to take leave if an accommodation is available, and cannot deny them employment opportunities if the denial is based on the company needing to make a reasonable accommodation.

Language in the law is aligned with other anti-discrimination acts, including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

Though the pregnant worker act patches holes in the fabric of federal litigation supporting pregnancy in the workplace, it does not replace federal, state or local laws that offer more protection than what it provides.

According to the EEOC, more than 30 states and Washington D.C. have employment protection laws for workers who are pregnant or nursing.

At one point, supporters in Indiana pushed for a state pregnant workers law but pivoted to garnering support for the federal law once that began picking up steam.

The state ended up passing a law that was less protective, stating employees can ask for a reasonable accommodation but their employers are not required to provide one. Now Indiana workers have broader protections under the federal act.

“They really sort of worked to educate the members of (Indiana’s) congressional delegation, most of whom are Republicans, as to why there needed to be a federal law and why this was an important protection,” said Indiana University Maurer School of Law Professor Deborah Widiss, who led a discussion about the law at the school on April 16.

Widiss teaches employment discrimination and family law.

Why the law is significant

The law follows a line of anti-discrimination legislation that previously failed to include specific language addressing pregnancy and childbirth accommodations.

The Americans with Disabilities Act, for example, covers some pregnancy-related impairments but does not identify pregnancy itself as a disability.

The Family and Medical Leave Act only provides coverage for an employee after the employee has worked 1,250 hours over 12 months. The pregnant workers act can be applied at any time.

Jocelyn Samuels, vice chair of the EEOC, believes the law provides benefits for employees and employers.

“In a lot of ways, it just seemed like a no brainer to recognize that the law could be structured to ensure that women could both keep their jobs, continue to perform the functions for which they were hired and maintain their own health and the health of their pregnancies,” she said. “And that that may simultaneously provide benefits for employers, who will be able to maintain their employees in the job for which they were hired and ensure that they could avoid turnover and loss of valuable institutional knowledge.”

The law received bipartisan support, not only from Congress but from a number of stakeholders with interest in the bill’s contents, Samuels said.

A number of medical conditions under the law, like pregnancy and lactation, typically don’t require much explanation as to how an employer can provide an accommodation. Other medical conditions, however, aren’t so obviously covered, and should be looked at on a case-by-case basis, according to the EEOC.

For example, while few federal courts have addressed whether menstruation falls under Title VII’s definition of “related medical conditions,” most cases illustrate that menstruation is at least covered in connection with a current or previous pregnancy or childbirth. The regulation suggests the EEOC can use examples like this to guide their handling of menstruation-related cases under the pregnant workers law.

Inclusion of abortion

One of the major conditions the EEOC addresses in its final regulation is abortion, which the agency includes in its definition of “pregnancy, childbirth, or related medical conditions.”

The decision is in line with the EEOC’s and courts’ interpretations of Title VII of the Civil Rights Act, according to the agency.

During a public comment period used to inform the EEOC’s final regulations, the commission reported receiving approximately 54,000 comments urging the EEOC not to include abortion in that definition.

“We were very happy to get robust public comments, because I think the whole purpose of a public comment process is to enable an enforcement agency to fully consider people’s points of view and legal arguments and improve the product that the agency finally produces,” Samuels said.

While Indiana Attorney General Todd Rokita’s office has joined the lawsuit challenging the abortion provisions, the office did not respond to Indiana Lawyer’s request for comment.

Arkansas Attorney General Tim Griffin said in written remarks that the abortion provisions are an attempt by the Biden administration to accomplish through regulatory fiat what it can’t get passed through Congress.

“Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law,” Griffin said.

Samuels said the commission’s approach shows how much consideration it gave to all comments.

Within the regulations, the EEOC offers an explanation to clarify the limits of the pregnant workers law, stating it is confined to workplace anti-discrimination and does not affect whether an abortion should happen or under which circumstances.

The EEOC also stated that, in its experience enforcing Title VII, few employers have faced a circumstance where an employee requested time off for an abortion and the employer denied it based on “religious or moral grounds.”

“The Commission concludes that it would not be consistent with Congress’ intent, as expressed in its choice of this statutory language for the PWFA, to construct a broader or narrower definition of “pregnancy, childbirth, or related medical conditions” than under Title VII…Indeed, it is likely that defining this phrase differently than it has been defined in a parallel statute would exceed the Commission’s congressionally delegated authority,” the EEOC stated in its final regulation.

The law’s future

Since the law took effect last June, the EEOC has gone down several avenues to ensure employers and employees know their rights and limitations under the federal law. Right now, anyone can go to the EEOC’s website and find a landing page all about the act and what important facts they should know.

Posters are also being placed in employee break areas laying out their rights.

The EEOC will continue doing outreach to spread awareness but ultimately, Samuels said, the law mirrors many concepts already in practice through other laws.

Paige Wynkoop, vice president of the Labor and Employment Law Society student organization at IU Maurer, is grateful to have learned more about the law during Widiss’s discussion and knows that education will help her and her peers navigate not only their careers in employment law but their own awareness as employees.

“A lot of our membership are young, career-oriented people, precisely the type of people who may want to seek accommodations under this law, so we think it can be important to helping our members navigate their professional lives, both as attorneys and as people,” Wynkoop said. •