After over a decade of advocacy, the Pregnant Workers Fairness Act (PWFA) was finally enacted into law in late 2022, with the intent of securing workplace protections for pregnant workers and shielding them against discrimination.
While the law took effect last year, the Equal Employment Opportunity Commission (EEOC) had yet to issue its final guidance on how the agency would interpret and enforce the PWFA. As of today, employers will have to abide by the EEOC’s final rule, which bolsters reasonable accommodations for pregnant workers on the job but also includes protections for those who need to take time off after childbirth or get an abortion. Here’s what it means for companies and their employees—and why the law is still getting pushback from certain corners:
The EEOC’s final rule
When the PWFA went into effect in 2023, it required that all companies with more than 15 employees grant reasonable accommodations to workers who were impacted by “pregnancy, childbirth, or related medical conditions.” Those accommodations could include, say, breaks during the workday for an employee with pregnancy complications. The law also explicitly prohibits retaliation against workers who request accommodations or report an employer who fails to comply.
The EEOC’s guidance, which was first released as a proposed rule last August and finalized in April after a public comment period, offered more clarity for employers as to how the law would actually be enforced in practice—including, for example, the types of accommodations that would be covered.
The rule noted that paid or unpaid time off was a key accommodation that employers should provide for appointments or recovery after childbirth—unless an employer could prove that granting time off would cause “undue hardship” to the business—though the EEOC stopped short of dictating the length of time. An employee’s job function or work schedule could also be temporarily altered to accommodate their pregnancy when appropriate.
One of the most notable aspects of the EEOC’s guidance was that it spelled out which medical conditions would be covered by the law. The rule touched on pregnancy-related health conditions like preeclampsia and gestational diabetes, as well as issues that might arise before or after childbirth—from fertility treatments to miscarriage or postpartum depression—but it also explicitly referenced abortion. That means under the PWFA, an employee who needs to travel out of state to access an abortion would be entitled to time off. (The rule does not, however, mandate that employers cover the cost of the abortion or travel.)
Why pushback remains
When the EEOC first released its proposed rule, the guidance related to abortion drew special notice. The agency received well over 100,000 public comments in response to the proposed rule; according to Bloomberg Law, more than 96,000 of those comments made mention of abortion. At the time, critics argued that the EEOC’s interpretation was too broad and went beyond the scope of the law as written. (The PWFA has long had support from both sides of the aisle and passed with a bipartisan majority back in 2022.)
In recent months, there have been several legal challenges to the law—and the EEOC. In Texas, a judge recently ruled that the law could not be enforced in the state because it was passed as part of a larger spending bill, with certain members of Congress voting by proxy; as a result of the ruling, public sector workers employed by the state are no longer covered by the PWFA. A federal lawsuit led by a coalition of religious groups in Louisiana is challenging the enforcement of the EEOC’s final rule and has been combined with another suit brought by the state attorneys general in Louisiana and Mississippi. On Monday, hours before the rule was slated to take effect, a judge granted an injunction that will temporarily bar enforcement of the PWFA in both states.
Right after the EEOC issued its final rule in April, Republican attorneys general across 17 states—spearheaded by Tennessee and Arkansas—brought a lawsuit against the agency, arguing its guidance was an “illegal” interpretation of the law. (Most of the states that have joined the lawsuit have strict anti-abortion restrictions or outright bans in place.) As part of the lawsuit, the states in question had requested a preliminary injunction to prevent the final rule from being implemented. This week, however, a judge in Arkansas denied the request and dismissed the suit. At least for now, countless workers across the country are still guaranteed the rights outlined by the PWFA.
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