June 2024 Newsletter

PREGNANT WORKERS FAIRNESS ACT – EFFECTIVE SOON

The Pregnant Workers Fairness Act (PWFA) final implementation rule is set to take effect on June 18, almost a year after the law first took effect. While a lawsuit has been brought by 19 states against the regulation, 23 other states recently filed a brief in its defense. The controversy stems from the U.S. Equal Employment Opportunity Commission’s (EEOC’s) definition of the term “pregnancy, childbirth or related medical conditions” as including abortion.

Litigated Provisions

The rule said that the PWFA covers “having or choosing not to have an abortion” as medical conditions related to pregnancy or childbirth, though this protection didn’t appear explicitly in the statute’s text. In an April complaint, 17 states cited the compliance costs to state governments and infringement on states’ sovereignty, because laws in many of the plaintiff states have “prohibited or limited abortion with rare exceptions.” Louisiana and Mississippi later sued, as well.

In addition to Louisiana and Mississippi, the states opposing the rule are: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia.

The text of the final rule said the effects of accommodations for abortion will be limited and likely will only include leave from work.

Coalition of Other States Defends Rule

New York Attorney General Letitia James announced on May 23rd a coalition of 23 state attorneys general who support the rule.  

In addition to New York, the states defending the regulation are: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, as well as the District of Columbia.

Essential Functions May Need to Be Excused

Under the Americans with Disabilities Act, an individual with a disability is entitled to a reasonable accommodation only if they can perform essential job functions with or without a reasonable accommodation. By contrast, under the PWFA, an individual covered by that law is entitled to a reasonable accommodation even if they cannot perform an essential job function, so long as the limitation is for a temporary period and the essential function can be performed in the near future.

Rule’s Background

The final rule came eight months after the agency released its proposed rule in August 2023, following which the EEOC received more than 100,000 comments. Approximately 54,000 comments were in favor of excluding abortion from the definition of “pregnancy, childbirth or related medical condition,” and approximately 40,000 comments were in favor of its inclusion.

Texas Ruling

On Feb. 27, a federal district court in Texas ruled that Congress lacked the required quorum to implement the PWFA, holding that the EEOC cannot enforce the law against the state. The court found that Congress violated the Constitution when it passed the PWFA.

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