Published September 14, 2023
On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations implementing the Pregnant Workers Fairness Act (PWFA). The Commission is accepting public comment on its proposal until Tuesday, October 10.
The PWFA was passed in December 2022 and went into effect on June 27, 2023. The Act requires employers to provide “qualified employees” “reasonable accommodations” for their “known limitations related to the pregnancy, childbirth, or related medical conditions” unless the accommodation would “impose an undue hardship” on the operation of the employer’s business.
The PWFA Fills a Gap in Employment Law
Title VII of the Civil Rights Act of 1964 made it unlawful to discriminate on the basis of sex in the workplace. It was later amended in 1978 by the Pregnancy Discrimination Act (PDA) to clarify that sex discrimination includes discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” Under the PWFA, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” Missing from these protections was an affirmative obligation on employers to provide women workplace accommodations.
The Americans with Disabilities Act of 1990 (ADA) required employers provide their employees with accommodations for qualifying disabilities, but pregnancy is not considered a disability. While certain pregnancy-induced medical conditions sometimes qualify for ADA disability accommodations, a significant gap remained for women seeking pregnancy-related accommodations.
The PWFA closed this gap by explicitly providing pregnancy accommodation protections for women. Instead of simply amending Title VII as the PDA did, the PWFA is a stand-alone law that draws aspects from both Title VII and the ADA. Unlike EEOC’s merely persuasive Title VII guidance documents, the PWFA gives EEOC rulemaking authority, so the final regulations will be legally binding on employers.
Pregnancy, Childbirth, and Related Medical Conditions
“Pregnancy, childbirth, and related medical conditions” is not defined in the PWFA but is the same phrase used by the PDA, which does not define it either. The EEOC says it gives the phrase “the same meaning under the PWFA as under Title VII.” It later clarifies that its definition relies on federal courts (though courts don’t always agree), EEOC guidance, and the expertise of medical professionals.
EEOC defines “related medical conditions” as “medical conditions which relate to, are affected by, or arise out of pregnancy or childbirth.” But its list of covered conditions expands well beyond actual medical conditions and includes: “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”
The EEOC repeatedly emphasizes that its list is “non-exhaustive.”
Under the proposed regulations, employers could be on the hook for accommodations when there is no actual pregnancy or childbirth and, indeed, when an employee’s goal is to avoid or electively end a pregnancy. The EEOC’s proposal opens the door to accommodations for men, such as for fertility treatments or “chestfeeding” infants. (That might explain why the EEOC went out of its way to avoid using female pronouns and the terms “women” and “pregnant women” throughout its proposed regulations.)
Abortion Accommodations
As I predicted, the EEOC is interpreting the PWFA to cover abortion even though the Act does not mention abortion and was passed with bipartisan support. Requiring abortion accommodations sub silentio, especially in the wake of Dobbs and in light of state pro-life laws, raises a major question.
When concerns over abortion accommodations were raised in the Senate, PWFA cosponsor and Democrat Senator Bob Casey stated on the floor that the EEOC “could not . . . issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortion leave in violation of State law.” After the EEOC issued its proposed regulations, Republican cosponsor Senator Bill Cassidy called out the EEOC for “go[ing] rogue” and “completely disregard[ing] legislative intent and attempt[ing] to rewrite the law by regulation.”
Considering Biden administration’s pro-abortion agenda, it would not be surprising if the PWFA regulations are used to try to preempt state pro-life laws like the DOJ has with the Emergency Medical Treatment and Active Labor Act (EMTALA) and the Department of Veterans Affairs has with its abortion benefits rule. While the PWFA states that it does not invalidate state laws that “provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions,” it is unclear whether the EEOC or courts will read “greater or equal protection” as laws protecting abortion or protecting unborn children (individuals affected by pregnancy and childbirth).
Known Limitation
“Known limitation” is defined in the PWFA as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” that is communicated to the employer. The EEOC points out that, unlike the ADA, there is no severity requirement for a condition to qualify as a limitation, so it can apply to conditions that are “modest, minor, and/or episodic,” and should be “construed broadly to the maximum extent permitted by the PWFA.”
The EEOC proposes expanding the definition of “limitation” to include when the worker “has a need or problem related to maintaining their health or the health of their pregnancy” and “when a worker is seeking health care related to pregnancy, childbirth, or a related medical condition itself.” The EEOC notes that maintaining health includes “avoiding risk to the employee’s or applicant’s health or to the health of their pregnancy.”
Under the proposed regulations, an employer is permitted to require supporting documentation only if “it is reasonable” to do so under the circumstances to determine whether to grant an accommodation.
Reasonable Accommodation
A “reasonable accommodation” merely means “a change in the work environment or how things are usually done” that “seems reasonable on its face, i.e., ordinarily or in the run of cases,” “feasible,” or “plausible.”
The proposed regulations identify the following “non-exhaustive” list of examples of possible reasonable accommodations:
- Job restructuring;
- Telework;
- Allowing sitting or standing;
- Assignment of light duty;
- Schedule changes, part-time or modified work;
- Permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit);
- Providing unpaid leave, including to attend health care-related appointments and to recover from childbirth;
- Providing more frequent breaks;
- Making existing facilities accessible or modifying the work environment;
- Acquiring or modifying equipment, uniforms, or devices;
- Temporary transfer;
- Temporarily suspending one or more essential function; and
- Adjusting or modifying examinations or policies.
In accord with its expansive leave-as-accommodation position under the ADA, the EEOC views the PWFA as requiring accommodations for leave and breaks more extensive than those required under the Family and Medical Leave Act and the Providing Urgent Maternal Protections for Nursing Mothers Act. The “PUMP Act,” also passed by Congress in December 2022, extends Fair Labor Standards Act protections for nursing mothers to take breaks to pump in a private place at work.
The PWFA clarifies that it does not “require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment or to affect any right or remedy available under any other Federal, State, or local law with respect to any such payment or coverage requirement.” Title VII contains a similar insurance provision, clarifying that an employer is not required “to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion.” Unlike Title VII, the PWFA’s insurance exclusion is not limited to abortion. But is doubtful that modifying an insurance plan would be considered a reasonable accommodation or one that does not pose an undue hardship.
Undue Hardship
The PWFA adopts the ADA’s definition of “undue hardship.” “Undue hardship” means “significant difficulty or expense” on the employer, which is to be considered in light of various factors, including: the nature and cost of the accommodation, the overall financial resources of the employer, the type of operation of the employer, and the impact of the accommodation on the employer’s operation. The EEOC proposes additional factors that may be considered when determining whether the temporary suspension of an essential function causes an undue hardship.
While undue hardship determinations must be made on a “case-by-case basis,” the EEOC proposes “predictable assessments” of four reasonable accommodations that do not create an undue hardship in “virtually all cases”: “(1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing an employee additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and (4) allowing an employee breaks, as needed, to eat and drink.”
Qualified Employee
To be entitled to an accommodation, an employee must be “qualified.” Under the PWFA, there are two ways an employee could qualify. First, when the employee “can perform the essential functions of the employment position” with or without a reasonable accommodation. Second, when an employee cannot perform an essential function of the job if (a) the inability to perform the essential function is “temporary,” (b) the employee could perform the essential function “in the near future,” and (c) the inability to perform the essential function “can be reasonably accommodated.”
The EEOC proposes defining “temporary” as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future’” and “in the near future” as “generally forty weeks.”
Under these proposed definitions, a broad scope of employees would qualify as eligible for accommodations for extensive periods of time. A qualified employee determination must be made for each condition, allowing employees to seek additional accommodations for different conditions during or after an accommodation’s forty-week period.
Religious Organization Exemption
The PWFA includes a rule of construction that incorporates Title VII’s religious organization exemption. The Act provides: “This chapter is subject to the applicability to religious employment set forth in section 2000e–1(a) of this title.” Section 2000e-1(a) states in relevant part, “This subchapter shall not apply . . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”
The Commission seeks comment on whether it should adopt a rule of construction that (a) “‘allows religious institutions to continue to prefer coreligionists in the pregnancy accommodation context,’ specifically in connection with accommodations that involve reassignment to a job or to duties for which a religious organization has decided to employ a coreligionist”; or (b) “construes the PWFA as not requiring a religious entity to make any accommodation that would conflict with the entity’s religion.”
These two formulations reflect the ongoing debate over the appropriate scope of Title VII’s religious organization exemption. If the exemption only applies to claims of religious discrimination, as some claim, its incorporation into the PWFA would be meaningless as the Act does not include any religious discrimination claims.
The EEOC acknowledges that the First Amendment’s ministerial exception and the Religious Freedom Restoration Act could also apply in certain circumstances on a “case-by-case basis.” But the EEOC is quick to point out that “most courts to consider the issue” (read: two circuit courts) have held that RFRA does not apply to lawsuits involving only private parties. As I’ve written, under this interpretation of RFRA, an employer’s religious freedom rights (and an employee’s nondiscrimination rights) would be contingent on whether EEOC decided to bring a lawsuit.
The scope of the rule of construction is particularly relevant for religious organizations if the PWFA is interpreted, as the EEOC proposes, to cover accommodations for abortion, contraception, and in vitro fertilization.
Retaliation and Coercion
The PWFA prohibits retaliation and also makes it unlawful to “coerce, intimidate, threaten, or interfere” with “the exercise or enjoyment of[] any right granted or protected by [the PWFA].” The EEOC proposes adding “harass” to this list. These prohibitions raise potential First Amendment free speech, free exercise, and freedom of association concerns, especially as it relates to employers’ religious and pro-life speech and policies.
Benefits
The EEOC claims that its proposed regulations will “benefit covered entities and the U.S. economy and society as a whole,” including the unquantifiable benefits of “improved maternal and infant health; improved economic security for pregnant workers; increased equity, human dignity, and fairness; improved clarity of enforcement standards; and efficiencies in litigation.”
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. As an attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.
Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.
