吃瓜大本营

Today, the U.S. Equal Employment Opportunity Commission released its implementing the Pregnant Workers Fairness Act. The landmark statute mandating 鈥渞easonable accommodation鈥� of workers鈥� pregnancy-related needs went into effect last summer, but the regulations explain the PWFA鈥檚 protections in more detail, providing additional guidance to workers, employers, and the courts so that the full force of the law is given effect.

That鈥檚 great news for workers like:

• Michelle Durham, an Alabama Emergency Medical Technician forced onto unpaid leave during pregnancy because her employer refused to honor her doctor鈥檚 directive that she not lift heavy stretchers and patients;
• Katia Hills, a retail worker from Indiana fired for absenteeism due to severe 鈥渕orning sickness鈥� and doctor鈥檚 visits; and
• Jennifer Panattoni, a police officer from Illinois forced to take leave without pay when she was denied temporary reassignment to a desk job.

Michelle, Katia, and Jennifer aren鈥檛 alone; millions of people, especially Black and Brown women at greatest risk of maternal morbidity and mortality, labor in strenuous jobs that could be dangerous during pregnancy 鈥� like health care, retail, and law enforcement 鈥� yet are routinely denied the temporary modifications they need to stay healthy. One study estimated that 250,000 people annually don鈥檛 get the accommodations they need, putting them at risk for miscarriage and other poor health outcomes on the one hand, and job loss on the other.

As the first federal statute enacted in 45 years to protect on-the-job rights of pregnant workers, Congress passed the PWFA to fill a significant gap in existing law when it comes to accommodations 鈥� those temporary on-the-job modifications that a person may need to maintain their health or the health of their pregnancy. These changes can be minor 鈥� such as a slightly later start time to account for 鈥渕orning sickness鈥� or more frequent breaks for workers who spend long shifts on their feet 鈥� or more significant, such as suspension of risky duties, like repeated heavy lifting or exposure to toxins.

Although workers with disabilities have been entitled to such changes for more than 30 years under the Americans with Disabilities Act, pregnant workers have lacked similarly explicit protections. The PWFA eliminates the Hobson鈥檚 Choice faced by pregnant workers 鈥� i.e., continue working under unsafe conditions or leave the job altogether 鈥� by requiring employers to accommodate workers with limitations caused by 鈥減regnancy, childbirth, or related medical conditions鈥� unless doing so would impose an 鈥渦ndue hardship鈥� on the employer鈥檚 business. Given the statute鈥檚 obvious benefits to workers and their families alike, it鈥檚 no wonder that the PWFA was enacted with exceptionally broad bipartisan cooperation that is virtually unheard of in today鈥檚 Congress, and with supporters as diverse as the U.S. Chamber of Commerce, U.S. Conference of Catholic Bishops, and the American Civil Liberties Union, my employer.

When the EEOC issued a draft version of its PWFA regulations last August, a small but noisy group raised the alarm that the agency had gone rogue. Why? The EEOC specifically stated that 鈥減regnancy, childbirth, or related medical conditions鈥� includes abortion, so that time off for abortion care 鈥� like time off for other doctor鈥檚 visits and medical procedures 鈥� is a 鈥渞easonable accommodation鈥� required by the new statute. Critics contended that such a requirement improperly forces employers to somehow participate in their employees鈥� abortion decisions, which they claimed is unfair to employers that object to abortion on religious grounds.

Such objections are likely to reemerge now that the EEOC鈥檚 final regulations are out, because abortion remains among the list of reasons entitling workers to reasonable accommodation. But while the EEOC鈥檚 noisy critics paint the agency as radical, it is they who push a fringe view 鈥� one that disregards nearly half a century of legal history. In 1978, Congress passed the Pregnancy Discrimination Act, a law protecting workers from discrimination based on 鈥減regnancy, childbirth, or related medical conditions.鈥� At the time, Congress made clear that it considered abortion to fall within that definition 鈥� meaning that firing or refusing to hire someone because they have had an abortion is unlawful discrimination. In 1979, the EEOC issued guidelines consistent with that interpretation and reaffirmed those directives in 2015, while in the four and a half decades since the PDA鈥檚 passage, numerous courts have reached the same conclusion: discrimination based on abortion is discrimination based on 鈥減regnancy, childbirth, or related medical conditions.鈥� The phrase also has been interpreted by judges to cover a wide range of pre- and post-partum reproductive needs, including the use of contraceptives, infertility treatment, and lactation. At the same time, the PDA makes clear that employers are not required to cover abortion in their health plans, and subsequent court cases have not disturbed that provision. When Congress copied and pasted 鈥減regnancy, childbirth, and related medical conditions鈥� from the PDA into the PWFA, all of that interpretive precedent came with it. The EEOC鈥檚 new regulations simply implement the law Congress actually passed.

When it comes to the rights of religious employers, abortion opponents also get an 鈥淔鈥� in history. While such entities long have enjoyed certain narrow exemptions from our discrimination laws 鈥� and the PWFA does nothing to disturb such precedent 鈥� courts repeatedly have refused to grant religious employers wholesale immunity from these statutes. Indeed, Congress rejected an amendment that would have exempted religious employers from the PWFA鈥檚 reach altogether. The EEOC regulations rightly also refuse to rubber-stamp discrimination in the name of religion, instead providing careful, case-by-case consideration to instances where a religious employer objects to an employee鈥檚 need for accommodation under the PWFA, if any happen to arise锟�.

Sadly, since 2022鈥檚 ruling in Dobbs v. Jackson Women鈥檚 Health Organization overturning Roe v. Wade, the time off of work that is necessary to get an abortion has increased exponentially. At last count, more than 20 states have either banned or severely restricted abortion. As a result, a sizable share of the U.S. population 鈥� millions of people 鈥� are now faced with the prospect of traveling hundreds of miles to even access this critically important healthcare. To name just one example, in Texas, where a near-total ban is in place, the average one-way trip for abortion has ballooned 鈥� an increase of a 锟糵ull.

The PWFA is historic, but not because it applies to abortion. Employers already are prohibited from taking adverse action against workers who have abortions. The PWFA simply bars them from punishing people for taking time away from the job to obtain abortion care 鈥� or any other reproductive health care. No one should have to risk their paycheck to get the medical care they need 鈥� and thanks to the PWFA, they don鈥檛.

This was first published in on 4/15/24