The Equal Employment Opportunity Commission (EEOC) recently issued a new rule clarifying the Pregnant Workers Fairness Act (PWFA) that is sparking some controversy given its allowance of paid time off for medical procedures that could include abortion. The rule states that employees should be provided “reasonable accommodation” for “pregnancy, childbirth, or related medical conditions,” which includes abortion.
The statute was applauded by pro-choice and abortion advocates, but critics argued that it could force employers, who may object to abortion, to passively participate in employees’ abortion decisions as well as potentially promote a larger pro-abortion plan.
After the rule was announced in August 2023, it received nearly 100,000 public comments, with 54,000 of them urging the EEOC to exclude abortion, and roughly 40,000 comments asking the commission to include it.
After the final rule was announced, some lawmakers argued that it was an attempt by the Biden administration to push a pro-choice agenda. “Adding this controversial provision into the PWFA is wrong. Period. Abortion is not a medical condition related to pregnancy; it is the opposite,” Rep. Virginia Foxx (R-N.C.), chairwoman of the House Education and the Workforce Committee, said in a statement when the final rule was issued. “Leave it to the Biden administration to think terminating a pregnancy and ending the life of an unborn child addresses the needs of pregnant workers.” Foxx also argued the rule steps outside of the EEOC’s legal authority. “The term ‘abortion’ is not once mentioned in the law.
Instead of following congressional intent, the Biden administration is using the regulatory process to advance radical policy goals,” Foxx added. “This isn’t surprising given the administration’s predilection for abusing the Constitution.”
In the Senate, the ranking Republican on the Health, Education, Labor and Pensions Committee agreed. Sen. Bill Cassidy (R-La.), who was also the lead Senate Republican on the 2022 bill that introduced the PWFA, argued that the rule to include abortion-related accommodations “injects abortion politics” into the law. “The Biden administration must enforce the law as passed by Congress, not how they wish it were passed,” Cassidy said in a statement. “The decision to disregard the legislative process to promote a political agenda is shocking and illegal.”
The Alliance Defending Freedom (ADF), a conservative Christian legal advocacy group, also argued that the rule is an attempt to promote a pro-abortion agenda. “This rule is just the latest example of the Biden administration abusing its power to advance abortion,” ADF Senior Counsel Julie Marie Blake said in a statement.
“The new rule seeks to punish the speech of pro-life employers and restrict their hiring practices. The Biden administration and the EEOC don’t have the legal authority to smuggle this illegitimate rule into a law that was created to protect and support women and that had nothing to do with abortion.”
Meanwhile, the American Civil Liberties Union (ACLU), the national nonprofit dedicated to protecting workers’ rights, argued that the Pregnancy Discrimination Act, which was passed in 1978 and is the law that the PWFA modified, also provided protections from discrimination based on “pregnancy, childbirth, or related medical conditions.”
“At the time, Congress made clear that it considered abortion to fall within that definition — meaning that firing or refusing to hire someone because they have had an abortion is unlawful discrimination,” the ACLU stated. “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 — or any other reproductive health care.”
The Center for WorkLife Law also applauded the rule, stating that it expands leave time and accommodations related to reproductive health for those who may be otherwise ineligible under the Family and Medical Leave Act. “Ultimately, these protections will enable more workers to earn an income to support their families without being forced to sacrifice their reproductive health,” the center said in a statement.
The EEOC outlined in its rule that the PWFA is a workplace anti-discrimination law and cannot require job-based health plans to pay for any procedures, including abortions. The new rule is scheduled to take effect in late June 2024.
For more background on this topic, see the November 2021 issue of Congressional Digest on “Abortion Access.”
