New rules say Pregnant Workers Fairness Act covers accommodations for abortion

U.S. workers who have abortions must be provided with accommodations like time off and flexible breaks under the Pregnant Workers Fairness Act (PWFA), according to a final rule released Monday. 

The Equal Employment Opportunity Commission (EEOC) in the rule said employers must provide the same accommodations to workers who have “limitations related to … pregnancy, childbirth, or related medical conditions.” 

That means that if an employee asks for time off to recover from an abortion, employers must grant it. 

An employer is not required to seek supporting documentation when an employee asks for a “reasonable accommodation” and should only do so when it is reasonable under the circumstances, the agency said. 

The EEOC is in charge of implementing the law, which passed with overwhelming bipartisan support at the end of 2022. The agency drew criticism from some Republicans and other conservatives for including abortion in its draft language last year; the final rule leaves that provision unchanged.   

The PWFA requires employers to provide “reasonable accommodations” for workers with limitations relating to “pregnancy, childbirth or related medical conditions” unless the accommodation would result in an undue hardship for the employer. The rules only apply to employers with at least 15 employees.    

The final rule “correctly takes a comprehensive view of pregnancy and related medical conditions—ensuring the law will provide protections to more women who need them,” said Sen. Patty Murray (D-Wash.).  

In the rule, the EEOC explained that the law is a workplace anti-discrimination law, and doesn’t affect whether and under what circumstances an abortion should be permitted.  

The law “does not require any employee to have—or not to have—an abortion, does not require taxpayers to pay for any abortions, and does not compel health care providers to provide any abortions. The PWFA also cannot be used to require an employer-sponsored health plan to pay for or cover any particular item, procedure, or treatment, including an abortion,” the agency said. 

The agency said it received about 100,000 public comments on the rule, and about half called on commissioners to exclude abortion from being included.  

The EEOC said it had received 54,000 comments urging the commission to exclude abortion from its definition of medical condition related to pregnancy, but it also received 40,000 comments supporting its inclusion. 

The type of accommodation that most likely will be sought under the Pregnant Workers Fairness Act regarding an abortion is time off to attend a medical appointment or for recovery, and it doesn’t have to be paid. 

Very few employers have actually faced a situation in which an employee is expressly requesting leave for an abortion, the agency noted, but all accommodations remain subject to applicable exceptions and defenses, including those based on religion and “undue hardship.” 

Still, Republican lawmakers and anti-abortion activists denounced the EEOC’s inclusion of abortion in the final rule. 

“Abortion is not a medical condition related to pregnancy; it is the opposite,” Rep. Virginia Foxx (R-N.C.), chairwoman of the House Education and Workforce Committee, said in a statement. “The PWFA does not apply to abortions. The term ‘abortion’ is not once mentioned in the law. Instead of following congressional intent, the Biden administration is using the regulatory process to advance radical policy goals.” 

Sen. Bill Cassidy (R-La.), the lead Republican cosponsor of the PWFA, said it “defies common sense” that the administration included abortion as a condition covered under the law.  

 “The Biden administration must enforce the law as passed by Congress, not how they wish it were passed. The decision to disregard the legislative process to promote a political agenda is shocking and illegal,” Cassidy said in statement.