Pregnant Workers Fairness Act Regulations Take Effect in Most States Following Legal Challenges

By Hazel Millard

The Pregnant Workers Fairness Act (PWFA) requires employers to make reasonable accommodations for workers who are pregnant, post-partum, or experiencing related medical conditions. This federal anti-discrimination law applies to all public sector employers and private sector employers with at least 15 employees. Workers may submit charges of discrimination under the PWFA to the Equal Employment Opportunity Commission (EEOC), the agency responsible for implementing and enforcing the law.

The EEOC is also responsible for issuing regulations that provide guidance on the scope of workers’ rights under the PWFA. The agency’s final regulations were issued on April 15, 2024. The regulations offer employers and employees concrete examples of reasonable accommodations for affected workers, such as providing extra breaks to allow workers to eat, drink water, or use the restroom; time off to attend medical appointments or recover after childbirth or a miscarriage; and telework options.

The regulations also expand on what qualifies as a “related medical condition” requiring reasonable accommodation under the law, aligning interpretation of this provision with the same language found in federal anti-discrimination law. The EEOC’s non-exhaustive list of “related medical conditions” includes: “lactation (including breastfeeding and pumping), miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome.”

Though the agency made clear that the inclusion of abortion “does not regulate the provision of abortion services or affect whether and under what circumstances abortion should be permitted,” abortion opponents seized the opportunity to challenge the PWFA’s implementation. In late April 2024, 17 state attorneys general sued the EEOC in the U.S. District Court for the Eastern District of Arkansas and requested that the court halt implementation of the regulations in their states. They argued that the agency exceeded its authority under the PWFA by listing abortion as a “related medical condition.”

In May, the attorneys general of Mississippi and Louisiana sued the EEOC in the U.S. District Court for Western District of Louisiana, raising complaints similar to those in the earlier lawsuit. Several Catholic organizations filed a third suit, also in the Western District of Louisiana, alleging that the regulations violated their First Amendment rights to free speech and religious freedom.

A federal district court judge dismissed the first lawsuit on June 14, four days before the regulations were set to take effect on June 18. The judge found that the 17 states failed to show a likelihood that they would suffer irreparable harm because of the implementation of the regulations. Three days later, on June 17, a different federal district court judge ruled on the consolidated cases brought by Mississippi, Louisiana, and the Catholic organizations. In striking contrast, the second judge held that the plaintiffs would suffer an injury under the regulations, which both exceeded the EEOC’s statutory authority and infringed on the Catholic organizations’ constitutional rights. The judge issued a preliminary injunction, stopping the portions of the regulations related to abortion care from taking effect in Mississippi and Louisiana and for the plaintiff organizations.

The remainder of the EEOC’s regulations still apply to employers in Mississippi and Louisiana and to the plaintiff organizations. The full PWFA regulations are now effective in countless public and private workplaces across 48 states, enhancing protections for workers who are pregnant, post-partum, or experiencing related medical conditions.

If you have questions about the rights of workers under the PWFA or other anti-discrimination laws, the experienced labor attorneys at Willig, Williams & Davidson are available to offer guidance to our clients on this issue.