Pregnant Workers Fairness Act

Analysis

The Act

The Pregnant Workers Fairness Act was voted into law with bipartisan support in 2022. The drafters of the legislation reassured that PWFA would not include a mandate for abortion or immoral artificial reproductive technologies, drawing support of the USCCB and pro-life legislators.

EEOC’S Implementing Regulation – Abortion Accommodation

In April 2024, the Equal Employment Opportunity Commission (EEOC) released its final REGULATION OF THE PREGNANT WORKERS FAIRNESS ACT. This regulation abandons the assurances offered Congress, redefining medical conditions related to pregnancy to include abortion, infertility treatments, surrogacy, amniocentesis, and more.

What is Required

Employers with 15 or more employees must accommodate a qualified employee’s known limitations related to pregnancy, childbirth, and related medical conditions, as long as it does not constitute an undue hardship on the employer (not to include burden on religious freedom).

Employer must engage in an interactive process with the employee addressing the scope of the limitation and determining the appropriate accommodation.
Anti-retaliation provision would be triggered if any adverse action were taken for known immoral actions.

Where Are Abortion and Other Immoral Issues

The original PWFA does not contain immoral issues. In the new implementing regulation, the EEOC defined “pregnancy, childbirth, and related medical conditions as including “… current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and …. The following are examples of conditions that are, or may be, ‘‘related medical conditions’’: termination of pregnancy, including via miscarriage, stillbirth, or abortion; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal (during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.” This list is non-exhaustive. (Add amniocentesis to find and eliminate those with fetal abnormalities, IVF, surrogacy, and more.

What is Forbidden

• Refusing or delaying reasonable accommodation;
• Requiring supporting documentation for the employee’s limitation;
• Requiring employee acceptance of any accommodation other than the one determined by the interactive process;
• Denying advancement or employment opportunities due to the need for accommodation;
• Requiring the employee to take leave when there are other options;
• Taking adverse action or retaliating against the employee because she requested accommodation.

The Question of Religious Exemptions

While the regulation comments on the importance of religious exemption, it does not provide a categorical religious exemption. It requires an application for religious exemption that must be considered on a case-by-case basis. An exemption must overcome compelling government interest like other non-discrimination statutes. The application for exemption itself is an admission of noncompliance, which could trigger EEOC action. While Restoration of Religious Freedom Act could protect religious objectors from an EEOC action, it may not be applicable in private right of action by an individual employee or a class action lawsuit. All applications for exemption would be discoverable by the Freedom of Information Act (FOIA), creating risk for secondary boycott.

The only exemption that may be applicable may be the Ministerial Exception (See more information here)