The Equal Employment Opportunity Commission (EEOC) recently proposed regulations (the “Proposed Rule”) to implement the Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodations for additional conditions relating to pregnancy, childbirth, and related medical conditions. Issued on August 11, 2023, the Proposed Rule is currently open for public comment, and has, as of this writing, already received more  than 40,440 public submissions responding to the EEOC’s proposal. Many remarks address the fact that the EEOC included references to abortion in its Proposed Rule.

Specifically, the Proposed Rule defines “pregnancy, childbirth, or related medical conditions” as including “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” (emphasis added). Previously issued guidance, which we discussed here, did not specifically mention abortion.

This expanded definition of “pregnancy, childbirth, or related medical conditions” would require covered employers to provide reasonable accommodations to qualified employees or applicants’ known limitation related to, affected by, or arising out of such conditions, including abortion, unless the accommodation would cause the employer an undue hardship on the operation of its business. The Proposed Rule defines covered employers to include “all employers covered by Title VII and the Government Employee Rights Act of 1991, 42 U.S.C. 2000e–16b, 2000e–16c (GERA), including private and public sector employers with at least 15 employees, Federal agencies, employment agencies, and labor organizations.”

As a reminder, although it is largely modeled on the Americans with Disabilities Act (ADA), the PWFA tracks Title VII of the Civil Rights Act of 1964 (“Title VII”) in applying to private employers with 15 or more employees (a full explanation of the statute is available here).

The Proposed Rule would permit workers to seek reasonable accommodations that could include leave for abortion-related care. For example, employers may need to accommodate employees seeking an abortion who must travel to another state to receive that procedure by providing additional time off. The EEOC’s inclusion of abortion is noteworthy since several states have outlawed abortion following the U.S. Supreme Court’s holding in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and Planned Parenthood v. Casey. During the comment period, which extends until October 10, 2023, the issue of abortion has been front and center.

Reliance on Title VII

The EEOC’s Proposed Rule for the PWFA relies in part on current federal legal protections under the Pregnancy Discrimination Act (PDA), a 1978 update to Title VII that prohibits discrimination based on “pregnancy, childbirth, or related medical conditions.”

Some courts have accepted that abortion is a pregnancy-related condition and that employers cannot discriminate against a woman who has had an abortion. For example (and as cited in the Proposed Rule), in Ducharme v. Crescent City Déjà Vu, LLC, an employee filed an action in federal court, alleging that her employer violated Title VII and the Louisiana Pregnancy Discrimination Act when she was unlawfully fired from her position as a bartender and server after terminating her pregnancy. The court found that abortion-related bias claims were covered under the PDA and state law.

Similarly, in Doe v. C.A.R.S. Prot. Plus, Inc., a terminated employee sued her employer under the PDA on the basis that she was discharged because she had abortion. The United States District Court for the Western District of Pennsylvania entered summary judgment for the employer. The employee then appealed, and the Third Circuit Court of Appeals found that the PDA prohibits employer from terminating a female employee based on her right to have an abortion.

The Proposed Rule relies, in part, on current definitions found in Title VII. For example, if adopted, the Proposed Rule would include the following definitions:

• Employer and employee: The PWFA would incorporate Title VII’s definitions of “employer” and “employee” and clarify that the term also includes “former employee” where relevant.
• Enforcement procedures: The PWFA will incorporate Title VII’s enforcement procedures.
• Procedures for filing charge or claim: The procedures for filing a charge or claim under the PWFA, as well as the available remedies, will be the same as under Title VII.
• Pregnancy, childbirth, or related medical conditions: The phrase “pregnancy, childbirth, or related medical conditions” would have the same meaning as in Title VII, but the Proposed Rule also provides additional examples of related medical conditions.
• Prohibition of retaliation: Like Title VII and the ADA, the PWFA prohibits retaliation against any employee, applicant, or former employee because that person opposed acts or practices made unlawful by the PWFA. Retaliation is also prohibited where a worker has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the PWFA.
• Notice requirement: Like Title VII, covered entities are required to post notices in conspicuous places describing applicable PWFA provisions.

Reliance on the ADA

The Proposed Rule for the PWFA also relies on current definitions found in the ADA. For example:

• Reasonable accommodation and undue hardship: The Proposed Rule uses the same definitions of “reasonable accommodation” and “undue hardship” as the ADA. Like the ADA, the PWFA does not require a covered entity to provide a reasonable accommodation that would impose an undue hardship. A covered entity can lawfully deny requested accommodations that would impost significant difficulty or expenses on its operations as defined under the ADA. However, the Proposed Rule identifies certain accommodations that are per se reasonable, which generally must be provided (e.g., sitting, standing, water breaks, bathroom breaks).
• Interactive process: The PFWA’s interactive process mirrors the ADA’s. Once the need for an accommodation has been communicated, the covered entity is required to respond to the request and should do so quickly. As with the ADA, a worker’s request does not need to be in writing or use any specific words or phrases. Employees or applicants may request accommodations in conversation or may use another mode of communication to inform the employer. However, if the covered entity wants to further question or explore the requested accommodation, it must engage in an interactive process with the employee. If the covered entity needs more information, the covered entity may need to analyze the essential functions of the job and request reasonable medical documents as permitted under the proposed PWFA regulations.
• Damages and mitigation: As under the ADA, damages are limited if the claim involves the provision of a reasonable accommodation, and the employer makes a good faith effort to meet the need for a reasonable accommodation. The employee can take steps to mitigate or lessen the effect of a known limitation. Likewise, damages are limited in instances where the claim involves the provision of a reasonable accommodation, and where the employer makes a good faith effort to provide a reasonable accommodation.
• Coercion, intimidation, threats, or interference: Like the ADA, the PWFA prohibits coercion, intimidation, threats, or interference with any individual in the exercise or enjoyment of rights under the PWFA or with any individual aiding or encouraging any other individual in the exercise or enjoyment of rights under the Act.
• Employee’s representative: The Proposed Rule uses the same definition of “employee’s representative” as the ADA and states that this term encompasses any representative of the employee or applicant, including a family member, friend, health care provider, or other representative.
• Essential function: The Proposed Rule adopts the ADA’s definition of “essential function.” However, the EEOC seeks comment on whether there are additional factors that should be considered in determining whether a function is essential for purposes of the PWFA. Additionally, the regulation proposes removing the ADA’s long-standing requirement that employees demonstrate that they can perform the essential functions of their position for a 40-week period. Under the EEOC’s proposal, this duration, which mirrors the average length of a pregnancy, would not apply. The Commission is also seeking comment on this issue.

What Employers Should Do

Since the Proposed Rule for the PWFA borrows language and concepts from longstanding ADA and Title VII law, employers can build upon their existing policies and processes to comply with the PWFA. However, the proposed broadened scope of the PWFA increases employers’ burdens to ensure that they are accommodating employees, including employees who are dealing with an abortion. Employers should consider taking the following actions if the Proposed Rule is adopted:

• Be aware of state or local laws prohibiting assistance to those obtaining abortions, which may affect whether such accommodations would pose an undue hardship to any employer.
• Be prepared to engage in the interactive process (when appropriate) if an employee seeks time off to obtain an abortion or for post-abortion complications.
• Treat documentation in support of leave requests for abortion-related reasons as you would medical documentation provided for any other reason, including maintaining the confidentiality of the employee’s medical information and assuring such records are kept separately and securely. In jurisdictions where abortion is banned, employers should consider the heightened sensitivity of requests for records that are for law enforcement purposes.
• If you are not exempt from coverage under the PDA, treat abortion-related requests for leave the same as other non-abortion-related leave requests.
• Train management and human resources personnel about how to properly address employee requests for leave and how to avoid discrimination claims where the request relates to abortion services or recovery.

Although the end of the comment period for the Proposed Rule is fast approaching, it is unlikely that the EEOC will issue a Final Rule quickly, given the high volume of public responses that the agency is obligated to review. We will continue to monitor and advise on any developments as they occur.