PWFA regulations to commence amidst conflicting court rulings

Regulations implementing the requirements of the Pregnant Workers Fairness Act (PWFA) to provide reasonable accommodations to employees’ known pregnancy, childbirth and related medical conditions unless it would create an undue hardship for the business will take effect on June 18, as scheduled, now that a federal court has dismissed a challenge by 17 GOP state attorneys general. However, another court has exempted two states from parts of the regulations related to abortions.

Arkansas court denies injunction

On Friday, June 14, the United States District Court for the Eastern District of Arkansas declined the attorney generals’ petition to issue an injunction halting the final rule issued by the Equal Employment Opportunity Commission (EEOC) and held that the states lacked standing to challenge it. The EEOC issued the final regulations on April 19, to take effect 60 days later.

The final rule defines pregnancy, childbirth or related medical condition broadly, encompassing current pregnancy, past pregnancy, potential or intended pregnancy (including infertility, fertility treatment and contraception), labor, childbirth, lactation and many associated health conditions. It also includes termination of pregnancy, including miscarriage, stillbirth and abortion.

It was the inclusion of abortion that triggered the legal challenge by a coalition of Republican state attorneys general, led by Arkansas and Tennessee. The states are primarily those which have restricted or banned abortions following the Supreme Court’s Dobbs ruling allowing states to determine the legal status of abortions. They argued that:

• The EEOC had improperly included a person’s decision whether to have an abortion was a medical condition under the PWFA.
• The final rule violated the Administrative Procedures Act and the US Constitution.
• The states would suffer irreparable harm if the rule took effect because it impinged on the states’ sovereignty and would incur compliance-related costs.

The court rejected all the arguments and dismissed the lawsuit for lack of standing, saying that the states had not made a compelling case for issuing a nationwide injunction of the entire EEOC regulation. They could not point to actual harm, the court said, only “imminent” harm and potential costs; had not disagreed with the PFWA final rule, except for a few words; and the effort to halt the rule would be ineffective because the PFWA itself would still be in effect and enforced and the alleged sovereign injuries therefore not addressed.

Louisiana court carves out exemptions

However, the United States District Court for the Western District of Louisiana ruled differently today just hours before the rules were to take effect. It issued a preliminary injunction exempting Louisiana and Mississippi from enforcement of the abortion-related provisions. The states’ request for an injunction had been combined with another brought by the US Conference of Catholic Bishops, Catholic University and two Catholic dioceses, who also are covered by the order.

The states argued that the EEOC had “smuggled abortion” into the final rule and noted that “the final rule all but admits that the PWFA is silent on abortion.”

The court held that, in issuing the final rule, the EEOC had exceeded its statutory authority and usurped the role of Congress and trampled the states’ sovereign authority. The court’s ruling covers the states of Louisiana and Mississippi and its agencies, the religious organizations named as plaintiffs, and “any covered entity … with respect to all employees whose primary duty station is located in Louisiana or Mississippi.”

The states and organizations are not required to provide accommodation for employees’ elective abortions that are unnecessary for treating a pregnancy-related medical condition. The order postpones the effective date of the specified regulations and enjoins the EEOC from investigating any claims against employers regarding the abortion regulations or from issuing a right to sue.

In a footnote, the court clarified that the injunction does not except terminations of pregnancies or abortions that stem from an “underlying treatment of a medical condition related to pregnancy” are not exempted by the injunction, and covered employers must accommodate them according to their PWFA obligations.