Labor & Employment Developments Blog

As we previously reported, in April 2024 the Equal Employment Opportunity Commission (EEOC) issued its final regulations implementing the Pregnant Workers Fairness Act (PWFA). Among other things, the rule stated that employers may be required to accommodate employees for abortion, treating it as a pregnancy-related condition.

That provision quickly became controversial. Several members of Congress and more conservative members of the EEOC argued that the rule went beyond what the PWFA allows, especially by including elective abortion in the scope of required workplace accommodations. The regulation was challenged in court, and now a federal judge in the Western District of Louisiana has partially struck it down.

In his ruling, U.S. District Judge David Joseph found that the EEOC overstepped its authority. The court applied the "major questions doctrine"—a legal principle that prevents federal agencies from making sweeping policy decisions without clear direction from Congress. Given the ongoing political and legal debate around abortion—especially after the Supreme Court's 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade—the court found that Congress likely did not intend to delegate such a significant policy call to the EEOC.

The court noted that the PWFA was passed just six months after Dobbs. If Congress had wanted to require accommodations for abortion, the judge reasoned, it would have said so explicitly. As a result, the court vacated the part of the EEOC regulation that treated elective abortion as a condition requiring accommodation under the PWFA.

What This Means for Employers

For HR professionals, this decision provides immediate clarity: under current law, employers are not required to provide workplace accommodations for elective abortions under the PWFA. However, this may not be the final word. Andrea Lucas, the current acting chair of the EEOC (and a dissenting voice on the original regulation), has signaled that she may propose revisions to the rule. Any changes would need to go through the formal rulemaking process, which includes public notice and comment.

In the meantime, HR teams should:

• Continue to comply with all PWFA requirements related to pregnancy, childbirth, and related medical conditions—excluding elective abortion for now.
• Monitor developments from the EEOC, particularly any efforts to revise the rule.
• Consult legal counsel when navigating requests for accommodations that may raise legal or political sensitivities.

As always, clear policies, training for managers, and a consistent approach to handling accommodation requests will help ensure compliance and minimize risk. The members of the KMK Labor & Employment Team are available to assist with any questions you may have regarding compliance with the PWFA.