A rule that includes abortion as a medical condition for which employees can request accommodations under the Pregnant Workers Fairness Act (PWFA) is facing renewed scrutiny.
The rule, which was issued by the Equal Employment Opportunity Commission (EEOC) last year, is being challenged by several states in a lawsuit that was revived last month. Acting EEOC Chair Andrea Lucas has also said she plans to “reconsider portions” of the rule once the agency has a quorum.
EEOC plans to challenge PWFA rule. The PWFA, which took effect in June 2023, requires employers with 15 or more workers to provide reasonable accommodations to employees who are pregnant, have given birth, or are experiencing related medical conditions, unless such accommodations pose an undue hardship to the employer.
In the EEOC’s 2024 rule for implementing the PWFA, it said abortion fell under the category of “pregnancy, childbirth, or related medical conditions,” arguing this was consistent with the courts’ longstanding interpretation of the same phrase in Title VII of the Civil Rights Act.
Lucas, who was serving as an EEOC commissioner at the time, disagreed with the final rule and voted against it. In a letter to fellow members of the EEOC commission, she took issue with the broad scope of the rule, which she argued reached “virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system.”
As acting chair of the EEOC, Lucas has said she intends “to reconsider portions” of the final PWFA that she believes are “unsupported by law.” This can’t happen until the EEOC has a three-person quorum. It currently lacks a quorum because President Donald Trump removed two commissioners in January.
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States allowed to challenge PWFA. As employers await potential changes to PWFA implementation from the EEOC, Republican-led states were given the go-ahead to move forward with a lawsuit challenging the rule.
Seventeen states sued the EEOC last year, arguing the rule’s abortion provision went further than the original legislation, and requesting a nationwide preliminary injunction. Many of the states that sued over the PWFA rule restrict abortion or ban it outright; in Tennessee, which led the lawsuit, the procedure is banned.
While a federal judge in Arkansas denied the states’ request for an injunction last June, arguing they didn’t have standing to sue, the Eight Circuit Court of Appeals recently reversed that decision. As employers, the appeals court argued, the states must abide by the rule and can claim it creates a “regulatory burden” for them. The case was sent back to the higher court for further review.
What HR needs to know. The PWFA rule has been subject to much legal back-and-forth since it went into effect last year, and it seems likely the abortion provision will be reconsidered now that Lucas is at the agency’s helm.
For now, though, the final rule is still in effect, so employers shouldn’t change their approach to complying with the PWFA yet.