EEOC’s Final Rule on PWFA Includes Abortion Accommodations

The U.S. Equal Employment Opportunity Commission’s (EEOC’s) final regulations for implementing the Pregnant Workers Fairness Act (PWFA) cover lactation support and other accommodations for expectant workers—as well as accommodations for workers seeking an abortion. The guidance is drawing cheers and criticism from government and workplace leaders.

Abortion accommodations are included in “pregnancy, childbirth or related medical conditions” that are covered by the law, according to the 408-page final rule. This decision to cover abortion accommodations came after the agency received more than 96,100 public comments on the proposed regulations addressing abortion, according to a Bloomberg Law study.

“Many of the comments urging the commission to exclude abortion from the definition of ‘pregnancy, childbirth, or related medical conditions’ expressed the view that abortion is the destruction of a human life, that it is objectionable for moral or religious reasons, and that it is not health care,” the agency wrote in the final rule. “The commission recognizes these are sincere, deeply held convictions and are often part of an individual’s religious beliefs.”

But the commission added that they had “received many comments that expressed deeply held beliefs, including religious beliefs, that abortion is a necessary part of health care and that an employer’s religious beliefs should not dictate an employee’s ability to receive a reasonable accommodation under the PWFA.”

Employers or health care providers are not required to provide or pay for abortions or any travel-related expenses. The abortion accommodations covered under PWFA would typically include allowing time off for the procedure and recovery, but the EEOC said that it would consider employers’ religious objections to providing abortion accommodations on a case-by-case basis.

Reps. Diana DeGette, D-Colo., and Barbara Lee, D-Calif., who serve as co-chairs for the Congressional Pro-Choice Caucus, applauded the EEOC for including abortion accommodations in its final rule.

“The Equal Employment Opportunity Commission was right to include abortion explicitly in its final regulation as they move to implement critical protections for pregnant workers,” they said in a statement. “And the Pro-Choice Caucus is proud to fight alongside the EEOC and the entire Biden Administration to protect the rights and safety of every abortion patient.”

However, Sen. Bill Cassidy, R-La., who blasted the Biden administration for its inclusion of abortion politics in the proposed regulation, condemned the final regulations. He argued that such a change should come from new laws passed by Congress rather than through agencies’ rulemaking.

In a post on his website, Cassidy said the law “defies common sense, and Congress’ intent, that EEOC continues to inject abortion into a law specifically aimed at promoting healthy childbirth,” while adding that “the decision to disregard the legislative process to promote a political agenda is shocking and illegal.”

Additional Reasonable Accommodations Under PWFA

Burrows said during a media session shortly after issuing the final regulations that the PWFA 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,” she said. “The bottom line is nobody should have to risk their job or health just because they are pregnant, recovering from childbirth or dealing with a related medical condition.”

The final regulations include several examples of reasonable accommodations, such as:

• Additional breaks to drink water, eat or use the restroom.
• A stool to sit on while working.
• Time off for health care appointments.
• Temporary reassignment.
• Temporary suspension of certain job duties.
• Telework or time off to recover from childbirth or a miscarriage.

The guidance also features information regarding limitations and medical conditions for which employees or applicants may seek reasonable accommodation, including miscarriage or still birth, migraines and pregnancy-related conditions that are episodic such as morning sickness.

Rule Also Includes Lactation Accommodations

Christine Bestor Townsend, an attorney with Ogletree Deakins in Milwaukee, said the final regulations do not differ substantially from the regulations proposed by the EEOC in August 2023.

“There are, however, important notable differences employers need to know,” she said.

For example, both the proposed and final regulations encourage employers to minimize documentation and cannot require documentation other than self-confirmation for the four “predictable assessments” and lactation.

But the final regulations go further, noting that employers that opt to ask for documentation other than self-confirmation cannot require any specific form. Employers can still seek reasonable documentation to:

• Confirm the physical or medical condition.
• Confirm the condition is related to, affected by or arising out of pregnancy, childbirth or related medical condition.
• Describe the adjustment or change needed due to the limitation.  

Townsend added that the final rule also “adds additional potential accommodations related to lactation, including accommodations related to nursing during work hours where the regular location of the employee’s workplace makes nursing during work hours a possibility because the child is in close proximity.”

Sarah Wells, an entrepreneur and author of Go Ask Your Mothers: One Simple Step for Managers to Support Working Moms for Team Success (Matt Holt Books, 2024), submitted a letter of support during the rule-making process, with an extra emphasis on the benefits to breastfeeding working parents.

She expressed her delight that the final rule builds on existing laws ensuring that lactation spaces are not only in physical reach of mothers at work but also equipped with essential amenities such as electricity, seating, and proximity to necessary facilities like sinks and refrigerators for milk storage, among other accommodations.

Wells said the ruling not only acknowledges the diverse needs of women in the workforce “but is an important next step in reaffirming the importance of fostering employment environments that prioritize both professional success and family responsibilities.”