Employers must provide accommodations for abortions, contraception under new rule

April 16, 2024

The Equal Employment Opportunity Commission (EEOC) implemented a final rule on Monday requiring most employers to provide “reasonable accommodations” for workers experiencing limitations due to pregnancy, childbirth or other related conditions such as choosing to get an abortion.

The final rule implements the Pregnant Workers Fairness Act (PWFA) that was signed into law in 2022 and went into effect last year. It requires covered entities to provide “reasonable accommodations” relating to an employee’s pregnancy, childbirth or related medical conditions.

The PWFA does not require leave to be paid as part of these accommodations, though an employer can provide paid leave if their policies account for it. These accommodations are required unless providing them causes “undue hardship” on the operation of the business. Employers may cite their religion when seeking an exemption from the rule.

“Under the framework of this final rule, accommodations related to abortion — like all accommodations — remain subject to applicable exceptions and defenses, including both those based on religion and undue hardship,” the final rule states.

The EEOC considers related conditions to include lactation, miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes or HELLP (hemolysis, elevated liver enzymes, low platelet count).

The EEOC provided examples of reasonable accommodations like breaks to eat, drink or use the restroom; a stool to sit on while working; time off for health care appointments; temporary reassignments or suspension of some job duties; and time off to recover from childbirth, miscarriage or other conditions.

The law applies to “public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government.” The final rule will be published on April 19 and will be in effect 60 days after this date.

Employees who believe their employer has violated the PWFA can file charges with the EEOC. Remedies for violations can include lost wages, additional compensation for emotional distress as well as having their attorney fees covered.

“The Pregnant Workers Fairness Act is a win for workers, families, and our economy. It gives pregnant workers clear access to reasonable accommodations that will allow them to keep doing their jobs safely and effectively, free from discrimination and retaliation,”  EEOC Chair Charlotte A. Burrows said in a statement.

“It encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.”