New rules for Pregnant Workers Fairness Act includes divisive accommodations for abortion

NEW YORK — Workers are entitled to workplace accommodations for abortions — along with other pregnancy-related medical conditions such as miscarriage, stillbirth and breastfeeding — under the Pregnant Workers Fairness Act, according to final federal regulations released Monday.

The regulations provide employers and employees with guidance on implementing the law, which passed in December 2022 with strong bipartisan support from Congress but sparked controversy last year when the Equal Employment Opportunity Commission included abortions in its draft rules. The language means employees can request time off to have an abortion and recover from the procedure.

The EEOC says its decision to retain the abortion provisions in its final rules, despite criticism from some conservatives, is consistent with its own long-standing interpretation of Title VII, as well as court rulings. The federal agency added that the new law does not require employers or employer-sponsored health plans to cover abortion-related costs, and that the type of accommodation most likely to be sought under the Pregnant Workers Fairness Act with respect to abortion is time off to obtain a attend a medical appointment or for recovery, for which no payment is required.

The law requires most employers with 15 or more employees to provide “reasonable accommodations” for an employee’s known limitations related to pregnancy, childbirth, or related medical conditions – including fertility and infertility treatments in some cases – unless the accommodation will place the employer under an unnecessary obligation. hardships. The EEOC’s regulations, which will be used as a framework to enforce the law, will go into effect on June 18.

Labor advocates called the new law particularly important for women of color who are most likely to work in low-wage, physically demanding jobs but are often denied accommodations for everything from time off for medical appointments to the ability to sit or stand. at work. . Major business groups also supported the law, citing the need for clarity on the accommodations employers must provide to pregnant workers.

“No one should have to risk their health just because they are pregnant, recovering from childbirth or dealing with a related medical condition,” EEOC Chairman Charlotte A. Burrows said Monday.

But Republican lawmakers and anti-abortion activists denounced the EEOC’s inclusion of abortion after the agency first released its proposed rule for a months-long public comment period in August. Abortion rights advocates, meanwhile, hailed the provision as crucial at a time when abortion rights have been curtailed in many states following the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade. The EEOC consists of three Democratic commissioners and two Republican commissioners.

Senator Bill Cassidy of Louisiana, the lead Republican sponsor of the Pregnant Worker Fairness Act, accused the Biden administration in August of “going rogue” with the regulations, which he said ignored the law’s intent “to provide a to inject a political abortion agenda. The Alliance Defending Freedom, a conservative Christian legal organization, said the Biden administration was trying to “smuggle an abortion mandate into law.”

But in comments filed with the EEOC, the American Civil Liberties Union commended the agency for “recognizing that abortion has been authorized under law for decades as a ‘medical condition related’ to pregnancy that entitles employees to reasonable accommodations, including time off to abortion care.”

The EEOC said it received 54,000 comments urging the commission to exclude abortion from the definition of a medical condition related to pregnancy, but it also received 40,000 comments supporting its inclusion. While the committee said it understood that both sides expressed “sincere, deeply held beliefs,” it cited numerous federal cases that it said supported its interpretation that abortion is a pregnancy-related condition worthy of protection.

The new rules provide extensive detail on the types of accommodations pregnant workers can request, from temporary relief from duties such as heavy lifting to considerations for morning sickness.

Women’s rights advocates had campaigned for the law for years, arguing that the 1978 Pregnancy Discrimination Act did not provide sufficient protection for pregnant workers. The 1978 law, which amended Title VII of the Civil Rights Act of 1964, banned discrimination on the basis of pregnancy and marked a major shift in gender equality at a time when pregnant women were routinely denied employment or pushed out of jobs.

But to receive workplace accommodations, pregnant women had to prove that coworkers had received similar benefits for similar needs, as the law only stated that pregnant workers should be treated the same as other workers, not that they deserved special consideration. That imposed a burden of proof that many women were unable to meet, forcing them to work in unsafe conditions or leave their jobs, according to A Better Balance, one of the most vocal advocates for the Pregnant Workers Fairness Act.

The new law makes it clear that pregnant workers are entitled to accommodations to continue doing their jobs, mirroring the process for workers with disabilities. It places the burden on employers to demonstrate “undue hardship” if they deny requests for changes.

The EEOC typically handles between 2,000 and 4,000 pregnancy discrimination charges per year, many of which involve denial of workplace accommodations. A survey conducted by A Better Balance found that in two-thirds of pregnancy discrimination cases following the 2015 Supreme Court ruling, courts ruled that employers could deny accommodation under the Pregnancy Discrimination Act.

In a prepared statement, Dina Bakst, co-chair of A Better Balance, commended the EEOC “for issuing robust final regulations that appropriately recognize the broad scope of the Pregnant Employee Fairness Act.”

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