Rule2024-07527
Implementation of the Pregnant Workers Fairness Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 19, 2024
Effective
June 18, 2024
Issuing agencies
Equal Employment Opportunity Commission
Abstract
The Equal Employment Opportunity Commission is issuing this final rule and interpretive guidance to implement the Pregnant Workers Fairness Act, which requires a covered entity to provide reasonable accommodations to a qualified employee's or applicant's known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.
Full Text
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<title>Federal Register, Volume 89 Issue 77 (Friday, April 19, 2024)</title>
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[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Rules and Regulations]
[Pages 29096-29220]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07527]
[[Page 29095]]
Vol. 89
Friday,
No. 77
April 19, 2024
Part IV
Equal Employment Opportunity Commission
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29 CFR Part 1636
Implementation of the Pregnant Workers Fairness Act; Final Rule
Federal Register / Vol. 89 , No. 77 / Friday, April 19, 2024 / Rules
and Regulations
[[Page 29096]]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1636
RIN 3046-AB30
Implementation of the Pregnant Workers Fairness Act
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule and interpretive guidance.
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SUMMARY: The Equal Employment Opportunity Commission is issuing this
final rule and interpretive guidance to implement the Pregnant Workers
Fairness Act, which requires a covered entity to provide reasonable
accommodations to a qualified employee's or applicant's known
limitations related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions, unless the accommodation
will cause an undue hardship on the operation of the business of the
covered entity.
DATES: This final rule and interpretive guidance is effective on June
18, 2024.
FOR FURTHER INFORMATION CONTACT: Sharyn Tejani, Associate Legal
Counsel, Office of Legal Counsel at 202-900-8652 (voice), 1-800-669-
6820 (TTY), <a href="/cdn-cgi/l/email-protection#582b30392a2136762c3d32393631183d3d373b763f372e"><span class="__cf_email__" data-cfemail="47342f26353e296933222d26292e072222282469202831">[email protected]</span></a>. Requests for this final rule and
interpretive guidance in an alternative format should be made to the
Office of Communications and Legislative Affairs at (202) 921-3191
(voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION:
Introduction
The Pregnant Workers Fairness Act (PWFA) \1\ requires a covered
entity to provide reasonable accommodations to a qualified employee's
or applicant's known limitations related to, affected by, or arising
out of pregnancy, childbirth, or related medical conditions, absent
undue hardship on the operation of the business of the covered entity.
The PWFA at 42 U.S.C. 2000gg-3(a) directs the Equal Employment
Opportunity Commission (EEOC or Commission) to promulgate regulations
to implement the PWFA.
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\1\ Consolidated Appropriations Act, 2023, Public Law 117-328,
Div. II, 136 Stat. 4459, 6084 (2022) (codified at 42 U.S.C. 2000gg
to 2000gg-6).
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The Commission issued its notice of proposed rulemaking (NPRM) on
August 11, 2023, and invited public comment on this proposal from
August 11, 2023, through October 10, 2023.\2\ Members of the public
submitted approximately 98,600 comments to the EEOC during this 60-day
period. Several of those comments were signed by multiple individuals;
thus, the total number of comments was over 100,000.\3\
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\2\ 88 FR 54714-94 (proposed Aug. 11, 2023) (to be codified at
29 CFR part 1636).
\3\ The vast majority of the comments were form comments that
were identical or slightly altered versions of a few base form
comments.
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Pursuant to 42 U.S.C. 2000gg-3(a), the Commission is issuing this
final regulation and an appendix entitled ``Appendix A to Part 1636--
Interpretive Guidance on the Pregnant Workers Fairness Act''
(Interpretive Guidance). As explained in the NPRM, the Interpretive
Guidance (a proposed version of which was included in the NPRM) will
become part of 29 CFR part 1636.\4\ The Interpretive Guidance
represents the Commission's interpretation of the issues addressed
within it, and the Commission will be guided by the regulation and the
Interpretive Guidance when enforcing the PWFA.\5\
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\4\ 88 FR 54719.
\5\ Id.
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General Information on Terms Used in the Regulation and Interpretive
Guidance
The PWFA at 42 U.S.C. 2000gg(3) uses the term ``employee (including
an applicant)'' in its definition of ``employee.'' Thus, throughout the
statute, this preamble, the final regulation, and the Interpretive
Guidance, the term ``employee'' should be understood to include
``applicant'' where relevant. Because the PWFA relies on Title VII of
the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy
Discrimination Act of 1978 (PDA), 42 U.S.C. 2000e et seq. for its
definition of ``employee,'' that term also includes ``former
employee,'' where relevant.\6\
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\6\ Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).
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The PWFA defines ``covered entity'' using the definition of
``employer'' from different statutes, including Title VII.\7\ Thus
``covered entities'' under the PWFA include public and private
employers with 15 or more employees, unions, employment agencies, and
the Federal Government.\8\ In this preamble, the final regulation, and
the Interpretive Guidance, the Commission uses the terms ``covered
entity'' and the term ``employer'' interchangeably.
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\7\ 42 U.S.C. 2000gg(2)(A), (B)(i), (B)(iii), (B)(iv). The other
statutes are the Congressional Accountability Act of 1995 and 3
U.S.C. 411(c).
\8\ The statute at 42 U.S.C. 2000gg(2) provides that the term
``covered entity'' ``has the meaning given the term `respondent'''
under 42 U.S.C. 2000e(n) and includes employers as defined in 42
U.S.C. 2000e(b), 2000e-16c(a), and 2000e-16(a). The statute at 42
U.S.C. 2000gg-5(b) provides as a rule of construction that ``[t]his
chapter is subject to the applicability to religious employment set
forth in section 2000e-1(a) of this title [section 702(a) of the
Civil Rights Act of 1964].''
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To track the language of the statute more closely and improve
readability, the Commission made three global changes from the proposed
rule and proposed appendix to the final rule and Interpretive Guidance.
First, the Commission removed most instances of the words ``applicant''
and ``former employee'' from the regulation and the Interpretive
Guidance; based on the statute and Title VII, the term ``employee''
covers ``applicant'' and ``former employee'' when relevant. Second, the
Commission replaced the word ``worker'' with the word ``employee''
throughout the regulation and the Interpretive Guidance. Third, the
Commission removed sections of the proposed rule that pertained solely
to employees covered by the Congressional Accountability Act of 1995
because the Commission does not have authority to regulate those
employees (former Sec. Sec. 1636.2(c)(2) and 1636.5(b)).
The Interpretive Guidance contains numerous examples to illustrate
provisions in the regulation. The Commission received some comments
identifying instances where these examples, in an effort to be simple
and short, oversimplified situations related to pregnancy, childbirth,
or related medical conditions. For example, the Commission used the
term ``bed rest'' in some examples; that is a colloquialism for several
actions that would be better described as ``rest and reduced
activity.'' \9\ The Commission agrees that in a real situation, there
may or may not be more complexity and that describing a restriction may
require different or more facts than are in an example. However, the
purpose of these examples is to illustrate legal points, to suggest
practical actions for covered entities and employees, and to encourage
voluntary compliance with the law. Thus, while
[[Page 29097]]
the Commission has made some changes to the examples in response to
these comments, it also has retained simple language in many examples
to allow for ease of reading and to keep the focus of the examples on
the PWFA's legal interpretation. The Commission notes that, depending
on the facts in the examples, the same facts could lead to claims also
being brought under other statutes that the Commission enforces, such
as Title VII and the Americans with Disabilities Act of 1990 (ADA), as
amended by the ADA Amendments Act of 2008 (ADAAA or Amendments Act), 42
U.S.C. 12101 et seq.\10\ Moreover, the situations in specific examples
could implicate other Federal laws, including, but not limited to, the
Family and Medical Leave Act of 1993, as amended (FMLA), 29 U.S.C. 2601
et seq.; the Occupational Safety and Health Act of 1970, as amended
(OSH Act), 29 U.S.C. 651 et seq.; and the Fair Labor Standards Act of
1938 (FLSA), 29 U.S.C. 201 et seq., as amended by the Providing Urgent
Maternal Protections for Nursing Mothers Act (PUMP Act), Public Law
117-328, Div. KK, 136 Stat. 4459, 6093 (2022).\11\ Additionally,
although some examples state that the described actions ``would
violate'' the PWFA, additional facts not described in the examples
could change that determination.
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\9\ Similarly, several examples discuss restrictions on how much
an employee can lift. The examples in the Interpretive Guidance
generally refer to these restrictions as ``lifting restrictions''
with a specific pound limit. In some situations, the determination
of such restrictions can depend on the frequency of lifting, the
height to which the object is lifted, the body position of the
person, and the distance between the person and the object. See,
e.g., Leslie A. MacDonald et al., Clinical Guidelines for
Occupational Lifting in Pregnancy: Evidence Summary and Provisional
Recommendations, 209 a.m. J. Obstetrics & Gynecology 80-88 (2013),
<a href="https://pubmed.ncbi.nlm.nih.gov/23467051/">https://pubmed.ncbi.nlm.nih.gov/23467051/</a>; U.S. Dep't of Health &
Hum. Servs., Ctrs. for Disease Control & Prevention, Nat'l Inst. for
Occupational Safety & Health, Provisional Recommended Weight Limits
for Lifting at Work During Pregnancy (Infographic), <a href="https://www.cdc.gov/niosh/topics/repro/images/Lifting_guidelines_during_pregnancy_-_NIOSH.jpg">https://www.cdc.gov/niosh/topics/repro/images/Lifting_guidelines_during_pregnancy_-_NIOSH.jpg</a> (last visited Mar.
18, 2024).
\10\ References to the ADA throughout the preamble, the
regulation, and the Interpretive Guidance are intended to apply
equally to the Rehabilitation Act of 1973, as all nondiscrimination
standards under Title I of the ADA also apply to Federal agencies
under section 501 of the Rehabilitation Act. See 29 U.S.C. 791(f).
\11\ To the extent that an accommodation in an example is
required under another law, like the OSH Act, the example should not
be read to suggest that such a requirement is not applicable.
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Finally, the Commission notes that the examples are illustrative.
They do not and are not intended to cover every limitation or possible
accommodation under the PWFA.\12\
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\12\ In the examples, the preamble, the regulation, and the
Interpretive Guidance, the Commission uses the terms ``leave'' or
``time off'' and intends those terms to cover leave however it is
identified by the specific employer. As stated in the proposed rule,
the Commission recognizes that different types of employers use
different terms for time away from work, including leave, paid time
off (PTO), time off, sick time, vacation, and administrative leave,
among others. 88 FR 54715 n.19. Similarly, in the examples, the
preamble, the regulation and the Interpretive Guidance, the
Commission uses the term ``light duty.'' The Commission recognizes
that ``light duty'' programs, or other programs providing modified
duties, can vary depending on the covered entity. As stated in the
proposed rule, the Commission intends ``light duty'' to include the
types of programs included in Questions 27 and 28 of the EEOC's
Enforcement Guidance: Workers' Compensation and the ADA and any
other policy, practice, or system that a covered entity has for
accommodating employees, including when one or more essential
functions of a position are temporarily excused. EEOC, Enforcement
Guidance: Workers' Compensation and the ADA (1996), <a href="https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada">https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada</a>; 88 FR 54715 n.20.
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1636.1 Purpose
The Commission made several minor changes to the Purpose section of
the regulation to follow the language in the statute more closely.
Specifically, the phrase ``related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions'' was added after
``known limitations'' throughout this paragraph, and the descriptions
of the retaliation and coercion provisions were slightly modified.\13\
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\13\ For example, the phrase ``Prohibits a covered entity from
retaliating'' was replaced with ``Prohibits discrimination'' in the
discussion of retaliation, and the phrase ``Prohibits a covered
entity from interfering with any individual's rights'' was replaced
with ``Prohibits coercion of individuals in the exercise of their
rights'' in the discussion of coercion.
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1636.2 Definitions--General
The Commission received numerous comments regarding the proposed
general definitions. For example, many comments encouraged the
Commission to clarify that restaurant workers are covered by the PWFA.
Several comments also suggested the Commission clarify that the
requirements for protection under the FMLA (in terms of how long an
employee must work for an employer and the number of hours) do not
apply under the PWFA and suggested the Commission clarify that
employees need not work for an employer for any specific period of time
in order to be covered by the PWFA.
The PWFA relies on definitions from Title VII to describe when an
employer is covered and who is protected by the law. Employers are
covered by the PWFA if they have 15 or more employees, regardless of
the industry. Thus, restaurant workers who work for restaurants with 15
or more employees are covered. Because the PWFA's approach to coverage
and protection follows Title VII, rather than the FMLA, employees are
covered even if they have not worked for a specific employer for a
specific length of time.
In the general definitions section of the rule, the Commission
added ``or the employee of a political subdivision of a State'' in
Sec. 1636.2(b)(3) and (c)(4) to better describe the employees covered
by the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. 2000e-
16c(a).
1636.3 Definitions--Specific to the PWFA
1636.3(a) Known Limitation
The rule reiterates the definition of ``known limitation'' from 42
U.S.C. 2000gg(4) and then provides definitions for the operative terms.
1636.3(a)(1) Known
The Commission did not change the definition of ``known'' from the
proposed rule. Under that definition a limitation is ``known'' to a
covered entity if the employee, or the employee's representative, has
communicated the limitation to the covered entity.
1636.3(a)(2) Limitation
The proposed rule restated the definition of limitation from the
statute and added that the physical or mental condition may be a modest
or minor and/or episodic impediment or problem, that it included when
an employee affected by pregnancy, childbirth, or related medical
conditions had a need or a problem related to maintaining their health
or the health of the pregnancy, and that it included when an employee
affected by pregnancy, childbirth, or related medical conditions sought
health care related to pregnancy, childbirth, or a related medical
condition itself.
The Commission received several comments supporting the definition
of ``limitation'' and suggesting that the word ``need'' be added to the
second sentence (in addition to ``impediment'' or ``problem'') so that
it would read: ``Physical or mental condition is an impediment,
problem, or need that may be modest, minor, and/or episodic.'' The
Commission declines to make this change because this sentence as it
exists (which uses the term ``impediment'' or ``problem'') is
sufficiently broad, and the third sentence of the definition of
``limitation'' covers when the employee has a ``need or a problem
related to maintaining their health or the health of the pregnancy.''
The Commission received a few comments asserting that this
definition was too broad and that it should be more restrictive. The
Commission disagrees. As discussed in the NPRM, the PWFA was intended
to cover all types of limitations, including those that are minor and
those that are needed to maintain the employee's health or the health
of the pregnancy.\14\ Thus,
[[Page 29098]]
creating a higher threshold would not be in keeping with this
rationale, would be contrary to congressional intent, and would impede
a qualified employee's ability to stay on the job.
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\14\ 88 FR 54714-16 (discussing the purpose of the PWFA,
including that it helps workers with uncomplicated pregnancies and
minor limitations), 54719-20 (explaining that allowing employees to
seek health care related to pregnancy, childbirth, or a related
medical condition itself is consistent with the ADA).
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A handful of comments asked for clarification as to whether the
language in the NPRM required employers to provide reasonable
accommodations to an employee when an employee's partner, spouse, or
family member--and not the employee themselves--has a physical or
mental condition related to, affected by, or arising out of pregnancy,
childbirth, or related medical conditions. It does not. To respond to
these comments, the Commission has included in the final rule's
definition of ``limitation'' that the limitation must be of the
specific employee in question. This is essentially the same language
that was in the NPRM with regard to related medical conditions in Sec.
1636.3(b).\15\
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\15\ 88 FR 54767 (providing that related medical conditions are
``as applied to the specific employee or applicant in question'').
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The Commission has made one minor change in the language of this
provision in the regulation. To track the language of the statute in 42
U.S.C. 2000gg(4), the Commission has changed the last sentence of the
definition of ``limitation'' regarding the ADA so that it now mirrors
the language in the statute (``whether or not such condition meets the
definition of disability'').
In the Interpretive Guidance, the Commission has added information
in section 1636.3(a)(2) Limitation calling attention to the possible
overlap between the PWFA and the ADA and noting that in these
situations the qualified employee may be entitled to an accommodation
under either statute, as the protections of both may apply. The
Commission has added information consistent with the changes in the
regulation described above to state that the limitation must be of the
specific employee in question and that the PWFA does not create a right
to reasonable accommodation based on an individual's association with
someone else with a PWFA-covered limitation or provide accommodations
for bonding or childcare. To make the language in the Interpretive
Guidance consistent with the regulation, the Commission has modified
language in the Interpretive Guidance regarding accommodations for
health care to clarify that accommodations may be needed to attend
health care appointments for a variety of reasons.\16\ Finally, the
Commission has modified language from the proposed appendix regarding
the PWFA and the lack of a ``severity'' requirement to avoid giving the
mistaken impression that the ADA has such a requirement.
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\16\ The proposed appendix stated: ``The definition also
includes when the worker is seeking health care related to the
pregnancy, childbirth, or a related medical condition itself . . .
and recognizes that for pregnancy, childbirth, or related medical
conditions the proper course of care can include regular
appointments and monitoring by a health care professional.'' 88 FR
54773. The new language in the Interpretive Guidance in section
1636.3(a)(2) Limitation states: ``Similarly, under the PWFA, an
employee may require a reasonable accommodation of leave to attend
health care appointments or receive treatment for or recover from
their pregnancy, childbirth, or related medical conditions.'' The
new language more accurately reflects that accommodations are not
limited to ``regular appointments'' or ``monitoring,'' which is
consistent with how leave for health care appointments is described
in the regulation and elsewhere in the Interpretive Guidance.
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Comments and Response to Comments Regarding the Commission's Proposed
Description of ``Related to, Affected by, or Arising Out of''
Some comments supported the Commission's reading of the language
``related to, affected by, or arising out of,'' stating that the
Commission's reading was textually accurate in that nothing in the
statutory language requires that the pregnancy, childbirth, or related
medical conditions be the sole or original cause of the limitation.
Other comments stated that the language in the NPRM explaining
``related to, affected by, or arising out of,'' especially when
combined with the definition of ``related medical conditions,'' could
require accommodations for known limitations caused by any physical or
mental condition that has any real, perceived, or potential connection
to--or impact on--an individual's pregnancy, fertility, or reproductive
system. These comments asked the Commission to alter the NPRM language
to counter this interpretation. Some comments asked for additional
clarification regarding the language ``related to, affected by, or
arising out of.''
The PWFA uses the language ``related to, affected by, or arising
out of'' to explain the connection between the physical or mental
condition and pregnancy, childbirth, or related medical conditions.\17\
As such, the statute does not require that pregnancy, childbirth, or
related medical conditions be the sole, the original, or a substantial
reason for the physical or mental condition, and the Commission does
not have the authority to change this term.
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\17\ 42 U.S.C. 2000gg(4).
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To help respond to these comments, in the Interpretive Guidance in
section 1636.3(a)(2) under Related to, Affected by, or Arising Out of,
the Commission has added that ``related to, affected by, or arising out
of'' are inclusive terms and that a pregnancy, childbirth, or related
medical condition does not need to be the sole, the original, or a
substantial cause of the physical or mental condition at issue for the
physical or mental condition to be ``related to, affected by, or
arising out of'' pregnancy, childbirth, or related medical conditions.
This is in keeping with the dictionary definition of ``related to,''
which is generally defined as ``connected with'' or ``about''
something.\18\ It also is consistent with the meaning of ``affected
by,'' as the dictionary definition of the word ``affect'' is ``to
cause,'' ``to produce,'' or ``to influence'' something.\19\ Finally, it
aligns with the meaning of ``arising out of,'' because the dictionary
definition of ``arise'' includes ``to begin to occur or exist'' or ``to
originate from a source.'' \20\
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\18\ Relate To, <a href="http://Merriam-Webster.com">Merriam-Webster.com</a>, <a href="https://www.merriam-webster.com/dictionary/related%20to">https://www.merriam-webster.com/dictionary/related%20to</a> (last visited Mar. 9, 2024).
\19\ Affect, <a href="http://Merriam-Webster.com">Merriam-Webster.com</a>, <a href="https://www.merriam-webster.com/dictionary/affect">https://www.merriam-webster.com/dictionary/affect</a> (last visited Mar. 18, 2024).
\20\ Arise, <a href="http://Merriam-Webster.com">Merriam-Webster.com</a>, <a href="https://www.merriam-webster.com/dictionary/arising">https://www.merriam-webster.com/dictionary/arising</a> (last visited Mar. 14, 2024).
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The Interpretive Guidance in section 1636.3(a)(2) under Related to,
Affected by, or Arising Out of further explains that determining
whether a physical or mental condition is ``related to, affected by, or
arising out of'' pregnancy, childbirth, or related medical conditions
should typically be straightforward, particularly in cases where an
individual is currently pregnant, is experiencing childbirth, or has
just experienced childbirth. Pregnancy and childbirth cause systemic
changes that not only create new physical and mental conditions but
also can exacerbate preexisting conditions and can cause additional
pain or risk.\21\ Thus, a connection between an employee's physical or
mental condition and their pregnancy, childbirth, or related medical
conditions will be readily ascertained when an employee is currently
pregnant or is experiencing or has just experienced childbirth.
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\21\ See, e.g., Danforth's Obstetrics & Gynecology 286 (Ronald
S. Gibbs et al. eds., 10th ed. 2008) (``Normal pregnancy entails
many physiologic changes . . . .''); Clinical Anesthesia 1138 (Paul
G. Barash et al. eds., 6th ed. 2009) (``During pregnancy, there are
major alterations in nearly every maternal organ system.'').
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The Commission has maintained the list of situations in the
Interpretive
[[Page 29099]]
Guidance in section 1636.3(a)(2) under Related to, Affected by, or
Arising Out of that show the connection between pregnancy, childbirth,
or related medical conditions and the limitation with some minor
changes.\22\ The Interpretive Guidance also maintains the discussion
that some conditions (like lifting restrictions) can occur whether or
not an employee is affected by pregnancy, childbirth, or related
medical conditions and that the Commission anticipates that confirming
that a physical or mental condition is related to, affected by, or
arising out of pregnancy, childbirth, or related medical conditions
will usually be straightforward and can be accomplished through the
interactive process. The Commission has added information to the
Interpretive Guidance explaining that there may be situations where a
physical or mental condition may no longer be related to, affected by,
or arising out of pregnancy, childbirth, or related medical conditions,
and that in those situations, an employee may seek an accommodation
under the ADA. The Commission also has added that there may be
situations where the physical or mental condition exacerbates an
existing condition that is a disability under the ADA, and in those
situations, an employee may be entitled to an accommodation under
either the ADA or the PWFA.
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\22\ For example, in the proposed appendix, many of the examples
in this paragraph said that the physical or mental condition was
``related to'' pregnancy. This has been changed to ``related to,
affected by, or arising out of'' to match the language in the
statute. The Commission has added that a lifting restriction may be
due to lower back pain that may be exacerbated by physical changes
associated with pregnancy to connect the lifting restriction to
pregnancy in that example. The Commission has added in this
paragraph that: ``A lactating employee who seeks an accommodation to
take breaks to eat has a related medical condition (lactation) and a
physical condition related to, affected by, or arising out of it
(increased nutritional needs),'' in order to include an example
about a ``related medical condition.'' The Commission has changed
the language in the proposed appendix from ``determining whether''
to ``confirming whether,'' where relevant, in order to match the
language used in Sec. 1636.3(l)(2).
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1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions
The NPRM explained that the phrase ``pregnancy, childbirth, or
related medical conditions'' appears in Title VII's definition of
``sex,'' as amended in 1978 by the PDA.\23\ Because Congress chose to
write the PWFA using the same phrase as in Title VII, as amended by the
PDA, and is presumed to have known the meaning given that phrase by the
courts and the Commission for over 40 years, the Commission gave the
phrase ``pregnancy, childbirth, or related medical conditions'' the
same meaning under the PWFA as under Title VII.\24\ When Congress
chooses to ``use[ ] the same language in two statutes having similar
purposes, . . . it is appropriate to presume that Congress intended
that text to have the same meaning in both statutes.'' \25\
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\23\ 88 FR 54721.
\24\ See, e.g., Tex. Dep't of Hous. & Cmty. Affs. v. Inclusive
Cmtys. Project, Inc., 576 U.S. 519, 536 (2015) (``If a word or
phrase has been . . . given a uniform interpretation by inferior
courts . . . , a later version of that act perpetuating the wording
is presumed to carry forward that interpretation.'') (omissions in
original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 322 (2012)); Bragdon v. Abbott,
524 U.S. 624, 645 (1998) (``When administrative and judicial
interpretations have settled the meaning of an existing statutory
provision, repetition of the same language in a new statute
indicates, as a general matter, the intent to incorporate its
administrative and judicial interpretations as well.''); Lorillard
v. Pons, 434 U.S. 575, 581 (1978) (``[W]here, as here, Congress
adopts a new law incorporating sections of a prior law, Congress
normally can be presumed to have had knowledge of the interpretation
given to the incorporated law, at least insofar as it affects the
new statute.''); Hall v. U.S. Dep't of Agric., 984 F.3d 825, 840
(9th Cir. 2020) (``Congress is presumed to be aware of an agency's
interpretation of a statute. We most commonly apply that presumption
when an agency's interpretation of a statute has been officially
published and consistently followed. If Congress thereafter reenacts
the same language, we conclude that it has adopted the agency's
interpretation.'') (internal citations and quotation marks omitted);
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 323 (2012) [hereinafter Scalia & Garner, Reading Law]
(``[W]hen a statute uses the very same terminology as an earlier
statute--especially in the very same field, such as securities law
or civil-rights law--it is reasonable to believe that the
terminology bears a consistent meaning.''); H.R. Rep. No. 117-27,
pt. 1, at 11-17 (discussing the history of the passage of the PDA;
explaining that, due to court decisions, the PDA did not fulfill its
promise to protect pregnant employees; and that the PWFA was
intended to rectify this problem and protect the same employees
covered by the PDA).
\25\ Smith v. City of Jackson, 544 U.S. 228, 233 (2005); see
Northcross v. Bd. of Ed. of the Memphis City Schs., 412 U.S. 427,
428 (1973) (per curiam) (observing that ``similarity of language''
between statutes is ``a strong indication that the two statutes
should be interpreted pari passu'').
---------------------------------------------------------------------------
The PWFA's legislative history supports the Commission's reading of
the phrase ``pregnancy, childbirth, or related medical conditions'' to
have the same meaning as the phrase in Title VII. The U.S. House of
Representatives Report accompanying the PWFA recounts the legislative
steps Congress has taken to protect workers affected by pregnancy,
childbirth, or related medical conditions. In 1964, Congress passed
Title VII, which included protection from discrimination based on sex.
In 1972, the EEOC interpreted the prohibition on sex discrimination to
include pregnancy, childbirth, or related medical conditions.\26\ In
1976, the Supreme Court determined that pregnancy discrimination was
not covered by Title VII.\27\ In 1978, responding to that decision,
Congress passed the PDA ``to codify the EEOC's original interpretation
of Title VII.'' \28\ Courts' subsequent interpretations of the
disparate treatment standard in the PDA, however, left ``[n]umerous
[g]aps'' in protections, and the Supreme Court's 2015 decision in Young
v. United Parcel Service, Inc., 575 U.S. 206 (2015), created a standard
that did not adequately protect the workers that the PDA covered,
according to the PWFA House Report.\29\ The House concluded that,
``[t]o remedy the shortcomings of the PDA, Congress must step in and
act.'' \30\ Congress' discussion of the PDA and identification of
shortcomings in the PDA as a reason for enacting the PWFA show that in
the PWFA, Congress sought to protect the same workers who are protected
by the PDA. By using Title VII's longstanding definition of
``pregnancy, childbirth, or related medical conditions'' for the PWFA,
the Commission is following both the text of the statute and its
legislative history.
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\26\ H.R. Rep. No. 117-27, pt. 1, at 12 (2021); 29 CFR
1604.10(b) (1972); 37 FR 6835, 6837 (1972) (addressing Title VII
coverage of ``[d]isabilities caused or contributed to by pregnancy,
miscarriage, abortion, childbirth, and recovery therefrom'').
\27\ Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 135-36 (1976).
\28\ H.R. Rep. No. 117-27, pt. 1, at 13; see also H.R. Rep. No.
95-948, at 2 (1978), as reprinted in 1978 U.S.C.C.A.N. 4749, 4750
(providing that the U.S. House of Representatives' version of the
PDA ``will amend Title VII to clarify Congress' intent to include
discrimination based on pregnancy, childbirth or related medical
conditions in the prohibition against sex discrimination in
employment'' and stating that the EEOC's 1972 guidelines--which
``state that excluding applicants or employees from employment
because of pregnancy or related medical conditions is a violation of
Title VII'' and ``require employers to treat disabilities caused or
contributed to by pregnancy, miscarriage, abortion, childbirth and
recovery therefrom as all other temporary disabilities''--``rightly
implemented the Title VII prohibition of sex discrimination in the
1964 [Civil Rights A]ct''); S. Rep. No. 95-331, at 2 (1977)
(explaining that, in implementing Congress' intent in amending Title
VII in 1972, the EEOC issued guidelines that ``made clear that
excluding applicants or employees from employment because of
pregnancy or related medical conditions was a violation of [T]itle
VII,'' and ``these guidelines rightly implemented the Congress'
intent in barring sex discrimination in the 1964 [Civil Rights
A]ct'').
\29\ H.R. Rep. No. 117-27, pt. 1, at 14-16.
\30\ Id. at 17.
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Comments Regarding Temporal Proximity to a Current or Recent Pregnancy
Some comments requested that the Commission limit the definition of
``pregnancy, childbirth, or related medical conditions'' under the PWFA
to situations that met their definition of close temporal proximity to
a current or recent pregnancy. These comments also
[[Page 29100]]
noted that many of the conditions listed in the NPRM as conditions that
could qualify as ``pregnancy, childbirth, or related medical
conditions'' also could impact individuals who have never been pregnant
or could first arise years before or after pregnancy. Relatedly,
several comments suggested that only conditions related to a current or
recent pregnancy (which the comments defined as one occurring 6 or
fewer months earlier) could be ``related medical conditions.''
Response to Comments Regarding Temporal Proximity to a Current or
Recent Pregnancy
The Commission declines to adopt the changes suggested by these
comments, as they seek to create a definition of ``pregnancy,
childbirth, or related medical conditions'' that is not supported by
Title VII case law or the Commission's Enforcement Guidance on
Pregnancy Discrimination and Related Issues.\31\ Further, adopting such
a bright-line temporal rule would improperly exclude many employees,
such as employees with postpartum limitations, who may require
pregnancy-related accommodations.\32\ That said, ``related medical
conditions'' must be related to the pregnancy or childbirth of the
specific employee in question, and whether a specific condition is
related to pregnancy or childbirth is a fact-specific determination
that will be guided by existing Title VII precedent and prior relevant
Commission guidance.
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\31\ EEOC, Enforcement Guidance on Pregnancy Discrimination and
Related Issues, (I)(A) (2015) [hereinafter Enforcement Guidance on
Pregnancy Discrimination], <a href="https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues">https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues</a>
(providing that the term ``pregnancy, childbirth, or related medical
conditions'' includes current pregnancy, past pregnancy, potential
or intended pregnancy, and related medical conditions).
\32\ See, e.g., Am. Coll. of Obstetricians & Gynecologists,
Comm. Opinion No. 736, Optimizing Postpartum Care (reaff'd 2021),
<a href="https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care">https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care</a> (discussing the
importance of postpartum health care, including treatment for
disorders arising during pregnancy and chronic medical conditions);
Susanna Trost et al., U.S. Dep't of Health & Hum. Servs., Ctrs. for
Disease Control & Prevention, Pregnancy-Related Deaths: Data from
Maternal Mortality Review Committees in 36 U.S. States, 2017-2019
(2022), <a href="https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html">https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html</a> (30% of pregnancy-related deaths occurred
one- and one-half months to one year postpartum).
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Comments Regarding the List of Conditions Included in the Regulation as
Examples of ``Pregnancy, Childbirth, or Related Medical Conditions''
Multiple comments supported the Commission's definition of
``pregnancy, childbirth, or related medical conditions'' and supported
the inclusion of the list of numerous possible ``related medical
conditions'' in the regulation. Comments argued that the Commission's
reading of ``related medical conditions'' best effectuates the purpose
and goals of the PWFA; is consistent with longstanding law, legislative
history, agency interpretation, medical understanding, and common
sense; and appropriately supplements the protections currently afforded
under the PDA.
By contrast, several comments stated that the language in the NPRM
explaining the term ``related medical conditions'' could require
accommodations for any physical or mental condition that has any real,
perceived, or potential connection to--or impact on--an individual's
pregnancy, fertility, or reproductive system. These comments asked the
Commission to alter the language in the proposed rule to counter this
interpretation.
Other comments stated that the broad, non-exhaustive list of
``related medical conditions'' exceeded the Commission's delegated
authority as intended by Congress and that such a list would, based on
sex, improperly privilege employees with gynecological conditions, or
disadvantage other employees with analogous conditions, and thus
potentially illegally discriminate under Title VII or the Equal
Protection Clause.
Response to Comments Regarding the List of Conditions Included in the
Regulation as Examples of ``Pregnancy, Childbirth, or Related Medical
Conditions''
Generally, the question of whether a condition constitutes
``pregnancy, childbirth, or related medical conditions'' in a
particular case will be fact-specific and guided by existing Title VII
precedent and relevant prior Commission guidance. To assist in making
that determination, the Commission made clarifying changes and
additions to the language in this section of the regulation and has
added more information in the Interpretive Guidance in section
1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions.
First, the Commission removed the phrase ``relate to, are affected
by, or arise out of'' with regard to ``related medical conditions'' in
the proposed Sec. 1636.3(b) in order to track the language of the
statute and reflect more closely language in the Commission's prior
enforcement guidance that explains the extent of the PDA and the
definition of ``pregnancy, childbirth, or related medical conditions.''
\33\ This sentence now says ``[r]elated medical conditions are medical
conditions relating to the pregnancy or childbirth of the specific
employee in question.''
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\33\ 42 U.S.C. 2000gg(4); Enforcement Guidance on Pregnancy
Discrimination, supra note 31, at (I)(A)(4)(a) (``[A]n employer may
not discriminate against a woman with a medical condition relating
to pregnancy or childbirth.'').
---------------------------------------------------------------------------
Second, the Commission reorganized the list of conditions in Sec.
1636.3(b) to follow more closely the organization of the Commission's
Enforcement Guidance on Pregnancy Discrimination explaining the
definition of ``pregnancy, childbirth, or related medical conditions,''
so that the two resources are consistent.\34\
---------------------------------------------------------------------------
\34\ Enforcement Guidance on Pregnancy Discrimination, supra
note 31, at (I)(A).
---------------------------------------------------------------------------
Third, the Commission addressed concerns raised in the comments
that conditions in the list of ``related medical conditions'' would
``always'' be ``related medical conditions'' and thus limitations
related to, affected by, or arising out of those conditions would
automatically be entitled to coverage under the PWFA. The Commission
responded to these concerns and requests by changing the language in
Sec. 1636.3(b) so that the list is now explained as conditions that
``are, or may be,'' ``related medical conditions.''
Fourth, the Commission added that the pregnancy or childbirth must
be ``of the specific employee in question.'' This language was already
in the NPRM--in that the NPRM made clear that related medical
conditions must be related to the pregnancy or childbirth of the
specific employee in question--and has been added to the definition of
``limitation'' as well.\35\
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\35\ Additionally, for consistency, the Commission replaced
``menstrual cycles'' with ``menstruation'' because menstruation is
the term used elsewhere in the NPRM and also replaced ``birth
control'' with ``contraception'' because that is the term used in
Enforcement Guidance on Pregnancy Discrimination cited throughout
the NPRM. Compare 88 FR 54767 (listing ``menstrual cycles'' in the
list of ``related medical conditions''), with 88 FR 54721, 54774
(explaining that the list in the regulation for the definition of
``pregnancy, childbirth, or related medical conditions'' includes
``menstruation''); Enforcement Guidance on Pregnancy Discrimination,
supra note 31, at (I)(A)(3).
---------------------------------------------------------------------------
In the Interpretive Guidance in section 1636.3(b) Pregnancy,
Childbirth, or Related Medical Conditions, the Commission has added
information
[[Page 29101]]
regarding the Commission's expectation that it will be readily apparent
that certain medical conditions (e.g., lactation, miscarriage,
stillbirth, having or choosing not to have an abortion, preeclampsia,
gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and
low platelets syndrome)) have a relation to pregnancy or childbirth;
and that, similarly, a connection between a medical condition and
pregnancy or childbirth will often be evident when a new medical
condition occurs or an existing medical condition is exacerbated or
poses a new risk during a current pregnancy, childbirth, or postpartum
period.
The Commission disagrees that creating a list of potential
``related medical conditions'' that are or may be related to pregnancy
or childbirth exceeds the Commission's authority. The list includes
related medical conditions that courts and the Commission, in its
Enforcement Guidance on Pregnancy Discrimination, have determined can,
but are not always required to be, related medical conditions, as well
as a non-exhaustive list of other conditions that, depending on the
situation, can be related to pregnancy or childbirth.\36\ The list
clearly states that it consists of examples that ``are or may be''
related medical conditions in a specific case. In each case, a
determination that a medical condition is related to pregnancy or
childbirth is fact-specific and contingent on whether the medical
condition at issue is related to the pregnancy or childbirth of the
specific employee in question. The Commission notes that regardless of
whether pregnancy, childbirth, or related medical conditions are at
issue, the provision of 42 U.S.C. 2000gg-5(a)(2) stating that nothing
in the PWFA shall be construed ``by regulation or otherwise, to require
an employer-sponsored health plan to pay for or cover any particular
item, procedure, or treatment'' applies.
---------------------------------------------------------------------------
\36\ Enforcement Guidance on Pregnancy Discrimination, supra
note 31.
---------------------------------------------------------------------------
The Commission also disagrees that accommodations under the PWFA
will potentially discriminate based on sex. The PWFA only provides
accommodations to qualified employees with limitations related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions. This is in keeping with courts that have found that
laws and other policies that provide leave for workers affected by
pregnancy do not discriminate based on sex.\37\ Additionally, in Young
v. United Parcel Service,\38\ the Supreme Court found that an employer
could be required by the PDA to provide an accommodation for pregnant
workers even if the employer's general policy did not provide for
accommodations for workers except in certain situations. The
accommodations provided under the PWFA are similar in purpose and
effect to those that could have been obtained in Young. And, just as
the accommodations contemplated by the Court in Young did not violate
Title VII, neither do accommodations under the PWFA.
---------------------------------------------------------------------------
\37\ See Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272,
290 (1987) (holding that, without violating Title VII, the State
could require employers to provide up to four months of medical
leave to pregnant women where ``[t]he statute is narrowly drawn to
cover only the period of actual physical disability on account of
pregnancy, childbirth, or related medical conditions'') (emphasis in
original); Johnson v. Univ. of Iowa, 431 F.3d 325, 328 (8th Cir.
2005) (``If the leave given to biological mothers is granted due to
the physical trauma they sustain giving birth, then it is conferred
for a valid reason wholly separate from gender.'').
\38\ 575 U.S. 206 (2015).
---------------------------------------------------------------------------
Moreover, Congress expressly intended that in some cases, the PWFA
would require accommodations for a qualified employee's limitations
related to, affected by, or arising out of pregnancy, childbirth, or
related medical conditions, even if such accommodations are not
available to other employees. In fact, Congress observed that the PDA's
comparator requirement ``is a burdensome and often impossible standard
to meet'' and thus is ``insufficient to ensure that pregnant workers
receive the accommodations they need.'' \39\
---------------------------------------------------------------------------
\39\ See H.R. Rep. No. 117-27, pt. 1, at 11-12.
---------------------------------------------------------------------------
Comments and Response to Comments Requesting Deletions, Additions, or
Other Modifications to the List of Examples of ``Pregnancy, Childbirth,
or Related Medical Conditions''
Many comments requested deletions, additions, or other
modifications to the list of examples of ``pregnancy, childbirth, or
related medical conditions'' provided in the proposed definition at
Sec. 1636.3(b). The Commission declines to modify the provided list.
As previously explained, the list of examples of ``pregnancy,
childbirth, or related medical conditions'' is non-exhaustive and
includes conditions that are commonly--but not always--associated with
pregnancy or childbirth. The list neither requires blanket
accommodation for every condition listed nor precludes accommodations
for conditions that are not listed. Additionally, because ``pregnancy,
childbirth, or related medical conditions'' has the same definition as
in Title VII, as amended by the PDA, this phrase's use in the PWFA
necessarily will continue to reflect Title VII case law regarding that
phrase.
Comments and Response to Comments Regarding Coverage of Specific
Conditions--Menstruation
A number of comments argued for or against the inclusion of
menstruation in the list of ``related medical conditions.'' While the
limited number of Federal courts that have addressed the issue of
whether menstruation falls within the Title VII definition of ``related
medical conditions'' have not always held that it does, read together,
the majority of these cases illustrate that, at a minimum, menstruation
is covered under Title VII when it has a nexus to a current or prior
pregnancy or childbirth. Accordingly, as with many conditions that can
be ``related medical conditions,'' this determination will be made on a
case-by-case basis.\40\
---------------------------------------------------------------------------
\40\ See EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 429-30
(5th Cir. 2013) (observing, in a case about whether lactation was a
``related medical condition,'' that ``as both menstruation and
lactation are aspects of female physiology that are affected by
pregnancy, each seems readily to fit into a reasonable definition of
`pregnancy, childbirth, or related medical conditions' ''); Flores
v. Va. Dep't of Corr., No. 5:20-CV-00087, 2021 WL 668802, at *4
(W.D. Va. Feb. 22, 2021) (declining to decide whether heavy
menstruation due to perimenopause was a ``related medical
condition,'' but observing that ``there is a strong argument that
menstruation is a `related medical condition' to pregnancy and
childbirth under the PDA''); but see Jirak v. Fed. Express Corp.,
805 F. Supp. 193, 195 (S.D.N.Y. 1992) (stating that menstrual cramps
alone were not a medical condition related to pregnancy or
childbirth); Coleman v. Bobby Dodd Inst., Inc., No. 4:17-CV-00029,
2017 WL 2486080, at *2 (M.D. Ga. June 8, 2017) (stating that the
employee's excessive menstruation was ``related to pre-menopause,
not pregnancy or childbirth'').
However, these and other cases suggest that, even if
menstruation (or another condition) is not found to be ``pregnancy,
childbirth, or related medical conditions'' in a particular case,
discrimination based on that condition could nevertheless violate
Title VII's prohibition on sex discrimination. See, e.g., Harper v.
Thiokol Chem. Corp., 619 F.2d 489, 492 (5th Cir. 1980) (concluding
that a policy requiring individuals returning from pregnancy leave
to have a normal menstrual cycle violated Title VII because it
denied ``persons of like qualifications equal employment
opportunities because of their sex,'' as ``company rules which
single out certain subclasses of women for disparate treatment
constitute unlawful sex discrimination''); Flores, 2021 WL 668802,
at *4 (allowing a Title VII claim to proceed ``regardless of
applying an expanded definition of `because of sex' or `on the basis
of sex' under the PDA'' where the plaintiff was fired for suspicion
of contraband due to her use of tampons while menstruating); see
also Int'l Union, United Auto., Aerospace & Agric. Implement Workers
of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 198-99 (1991)
(providing that a policy excluding women with childbearing capacity
from certain jobs was discrimination based on gender under Title
VII; this conclusion was ``bolstered'' by the PDA, which prohibits
discrimination ``because of or on the basis of pregnancy,
childbirth, or related medical conditions''); Phillips v. Martin
Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam) (opining that
an employer who refused to take applications from women with
preschool-age children but hired men with preschool-age children and
other women would violate Title VII, absent a defense).
---------------------------------------------------------------------------
[[Page 29102]]
Comments and Response to Comments Regarding Coverage of Specific
Conditions--Lactation
One comment claimed there was a split between courts on the issue
of whether lactation falls within the scope of the PDA, stating that
some courts, including the Fourth and Sixth Circuits, found that it
does not, while other courts have found that it does. One case cited by
the comment, however, does not address coverage of lactation as a
related medical condition under Title VII. The case of Derungs v. Wal-
Mart Stores, Inc., 374 F.3d 428 (6th Cir. 2004), involved a question of
whether a store's ban on public breastfeeding was discriminatory under
a State public accommodation statute where that statute did not include
protection on the basis of ``pregnancy, childbirth, or related medical
conditions.'' \41\ Another case cited by the comment, Barrash v. Bowen,
846 F.2d 927 (4th Cir. 1988) (per curiam), is similarly inapposite. In
Barrash, the Fourth Circuit held that a Federal Government employee who
challenged her termination of employment on grounds of unauthorized
absence as violative of her constitutional and contractual rights was
not entitled to 6 months of leave in order to breastfeed her baby. That
court's statement, that ``[u]nder the [PDA] . . . , pregnancy and
related conditions must be treated as illnesses only when
incapacitating,'' \42\ was subsequently recognized by the same court as
``dicta without any citation of authority.'' \43\ By contrast, EEOC v.
Houston Funding II, Ltd., held that lactation is a related medical
condition of pregnancy for purposes of the PDA because it is the
``physiological process of secreting milk from mammary glands and is
directly caused by hormonal changes associated with pregnancy and
childbirth'' and is ``a physiological result of being pregnant and
bearing a child.'' \44\ Hicks v. City of Tuscaloosa agrees with Houston
Funding that lactation is a related medical condition and therefore
covered under the PDA.\45\ Thus, Derungs and Barrash do not foreclose a
finding that lactation can be a ``related medical condition'' under
Title VII and do not undercut the Commission's conclusion that
lactation can be a related medical condition under the PWFA.
---------------------------------------------------------------------------
\41\ In its analysis, Derungs also discussed Title VII coverage
for breastfeeding under a comparator analysis and found that
breastfeeding would not be covered because of an absence of
comparators (i.e., men who could breastfeed). Derungs, 374 F.3d at
438-39. Independent of the soundness of that analysis, the case did
not address whether lactation was or could be a ``related medical
condition'' to pregnancy and noted in its description of the Ohio
statute regarding employment that parallels Title VII that ``[t]he
Legislature made a conscious choice to extend the definition of
discrimination to include pregnancy even though there cannot be a
class of similarly situated males.'' Id. at 436.
\42\ Barrash, 846 F.2d at 931.
\43\ Notter v. North Hand Protection, 89 F.3d 829, at *5 (4th
Cir. 1996) (per curiam) (table) (explaining that ``[t]he text of the
[PDA] contains no requirement that `related medical conditions' be
`incapacitating' '').
\44\ 717 F.3d at 428.
\45\ 870 F.3d 1253, 1259 (11th Cir. 2017).
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Comments and Response to Comments Regarding Coverage of Specific
Conditions--Infertility and Fertility Treatments
Some comments agreed with the Commission's inclusion of infertility
and fertility treatments in the list of covered conditions in the
regulation. By contrast, other comments stated that the Title VII case
law on infertility is inconsistent and thus infertility and fertility
treatments should not be included in the list of potentially covered
conditions in the regulation. The Commission concludes that, as with
other conditions, and consistent with case law and its prior policy,
whether infertility and fertility treatments are covered by the PWFA
will be based on the particular circumstances of the situation, thus
potentially allowing for reasonable accommodations for treatment for
infertility when an employee with the capacity to become pregnant is
trying to get pregnant.
In Johnson Controls, the Supreme Court struck down an employer
policy that discriminated between workers based on childbearing
capacity and held that the PDA prohibits discrimination based on
potential pregnancy.\46\ In accordance with Johnson Controls,
discrimination based on the potential to be pregnant, not only current
pregnancy, is covered by Title VII and the PDA. Because Title VII, as
amended by the PDA, can cover potential pregnancy, several courts have
found that it protects against discrimination for those undergoing in
vitro fertilization (IVF) or infertility treatments related to becoming
pregnant because these actions are related to the capacity to become
pregnant.\47\ By contrast, notably in the insurance context where the
challenged restriction excluded all types of infertility treatments
from coverage, regardless of the insured employee's capacity to become
pregnant, courts have found such policies did not violate the PDA.\48\
Those cases do not stand for the proposition that fertility treatments
are never covered by the statutory phrase ``pregnancy, childbirth, or
related medical conditions,'' but instead hold that the particular
claims in those cases fail based on the lack of differential treatment
based on sex. The Commission's Enforcement Guidance on Pregnancy
Discrimination summarizes the law in this regard:
---------------------------------------------------------------------------
\46\ 499 U.S. at 204-06; see also Kocak v. Cmty. Health Partners
of Ohio, 400 F.3d 466, 470 (6th Cir. 2005) (reasoning that the
plaintiff ``cannot be refused employment on the basis of her
potential pregnancy'').
\47\ Hall v. Nalco Co., 534 F.3d 644, 649 (7th Cir. 2008)
(finding an employer's practice of terminating employees who took
leave for IVF treatment violated the PDA because only women undergo
IVF); Erickson v. Bd. of Governors of State Colls. & Univs., 911 F.
Supp. 316, 320 (N.D. Ill. 1995) (finding that a plaintiff who
underwent infertility treatment, ``although infertile, may have been
viewed by her employer as potentially pregnant,'' and distinguishing
between ``infertility [that] does not relate to [the] capacity to
become pregnant'' and that which does relate to the capacity to
become pregnant); Pacourek v. Inland Steel Co., 858 F. Supp. 1393,
1397, 1403-04 (N.D. Ill. 1994) (finding that infertility or its
treatment were conditions that fell under the umbrella of pregnancy
(including potential pregnancy), childbirth, or related medical
conditions).
\48\ Saks v. Franklin Covey, Inc., 316 F.3d 337, 346 (2d Cir.
2003) (finding that generally, ``[i]nfertility is a medical
condition that afflicts men and women with equal frequency,'' but
leaving open the question of whether an individual ``would be able
to state a claim under the PDA or Title VII for adverse employment
action taken against her because she has taken numerous sick days in
order to undergo surgical implantation procedures''); Krauel v. Iowa
Methodist Med. Ctr., 95 F.3d 674, 679-680 (8th Cir. 1996) (finding
the benefits policy at issue did not violate Title VII, reasoning
that ``the policy of denying insurance benefits for treatment of
fertility problems applies to both female and male workers and thus
is gender-neutral''), abrogated on other grounds by Bragdon v.
Abbott, 524 U.S. 624 (1998). Notably, because of 42 U.S.C. 2000gg-
5(a)(2), nothing in the PWFA can require an employer-sponsored
health plan to pay for or cover any particular item, procedure, or
treatment. Thus, PWFA accommodation claims will not involve coverage
by health care plans.
Employment decisions related to infertility treatments implicate
Title VII under limited circumstances. Because surgical impregnation
is intrinsically tied to a woman's childbearing capacity, an
inference of unlawful sex discrimination may be raised if, for
example, an employee is penalized for taking time off from work to
undergo such a procedure. In contrast, with respect to the exclusion
of infertility from employer-provided health insurance, courts have
generally held that exclusions of all infertility coverage for all
employees is gender neutral and does not violate Title VII. Title
VII may be implicated by exclusions of particular treatments that
apply only to one gender.\49\
---------------------------------------------------------------------------
\49\ Enforcement Guidance on Pregnancy Discrimination, supra
note 31, at (I)(A)(3)(c) (footnotes omitted).
Thus, depending upon the facts of the case, including whether the
infertility treatments are sought by an employee with the capacity to
become pregnant
[[Page 29103]]
for the purpose of becoming pregnant, accommodations for an employee
due to physical or mental conditions related to, affected by, or
arising out of infertility or fertility treatments may be provided
under the PWFA, absent undue hardship.
Comments and Response to Comments Regarding Coverage of Specific
Conditions--Contraception
Some comments agreed with the Commission's inclusion of
contraception in the regulation. By contrast, some comments stated that
the Commission had not properly interpreted Federal case law related to
the coverage of contraception and that the Eighth Circuit's holding in
In re Union Pacific Railroad Employment Practices Litigation \50\
forecloses accommodations related to contraception under all
circumstances.
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\50\ 479 F.3d 936, 939, 942 (8th Cir. 2007) (concluding that
Union Pacific's insurance policy--which excluded ``all types of
contraception, whether prescription, non-prescription or surgical
and whether for men or women''--did not discriminate against women
and therefore did not violate the PDA and distinguishing Johnson
Controls on the ground that, unlike ``potential pregnancy,''
``contraception is not a gender-specific term'').
---------------------------------------------------------------------------
The Commission disagrees that reasonable accommodations regarding
contraception for an employee who has the capacity to become pregnant
are foreclosed in all cases by In re Union Pacific. As stated above,
the Supreme Court has held that Title VII ``prohibit[s] an employer
from discriminating against a woman because of her capacity to become
pregnant.'' \51\ Consistent with this holding, the Eighth Circuit and
other courts, like the Commission, have long recognized that the
protections of Title VII extend to employees based on the employees'
potential or intent to become pregnant.\52\
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\51\ Johnson Controls, 499 U.S. at 206.
\52\ See Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150,
1154, 1160 (8th Cir. 2003) (upholding a judgment and award for a
plaintiff claiming pregnancy discrimination where the plaintiff
provided evidence that her supervisor's discriminatory behavior was
based on the supervisor's belief that she was, or was intending to
become, pregnant a second time); see also Kocak, 400 F.3d at 470
(reasoning that the plaintiff ``cannot be refused employment on the
basis of her potential pregnancy''); Batchelor v. Merck & Co., 651
F. Supp. 2d 818, 830-31 (N.D. Ind. 2008) (holding that the plaintiff
was protected under the PDA where her supervisor allegedly
discriminated against her because of her stated intention to start a
family); Cleese v. Hewlett-Packard Co., 911 F. Supp. 1312, 1317-18
(D. Or. 1995) (concluding that the plaintiff, who claimed that the
defendant employer discriminated against her because it knew she
planned to become pregnant, fell within the PDA's protections and
noting that the court agreed with ``Pacourek that the purpose of the
PDA is best served by extending its coverage to women who are trying
to become pregnant'').
---------------------------------------------------------------------------
As stated in the Enforcement Guidance on Pregnancy Discrimination,
interpreting In re Union Pacific as holding that contraception is never
related to pregnancy for purposes of the PDA because it is used prior
to pregnancy would be inconsistent with Johnson Controls and many other
cases.
In the Commission's view, In re Union Pacific is best understood as
a case about a specific health insurance policy that excluded coverage
of both prescription and non-prescription contraceptive methods that
were used to prevent pregnancy, regardless of the sex of the employee
who used them.\53\ The gender-neutral nature of the insurance exclusion
was central to In re Union Pacific's holding that the insurance policy
did not constitute disparate treatment under Title VII. This is similar
to the reasoning of courts that have found that denial of insurance
coverage for infertility generally, which can affect employees
regardless of their capacity to become pregnant, does not violate the
PDA, while still leaving open the possibility that the PDA could be
violated if an employee was penalized for using leave for IVF
treatments.\54\ As with infertility, the failure of particular Title
VII claims related to contraception based on the lack of gender-based
differential treatment does not mean that contraception can never be
covered by the statutory phrase ``pregnancy, childbirth, or related
medical conditions.''
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\53\ See also Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U.S. 669, 678-79 & n.17, 683-84 (1983) (noting that the
legislative history of the PDA demonstrates Congress' intent that it
would be facially discriminatory for an employer to discriminate in
insurance coverage between persons who face a risk of pregnancy and
those who do not, and concluding that the employer unlawfully gave
married male employees a benefit package for their dependents that
was less inclusive than the dependency coverage provided to married
female employees). In Newport News, the Court found that the
benefits that a male employee and his dependents could receive were
less than what a female employee and her dependents could receive,
and thus the plan violated the PDA. This rationale further explains
the decisions in In re Union Pacific and Krauel. In those cases,
both of which involved insurance benefits, the benefits received by
employees and their dependents were the same; thus, there was not a
PDA violation. See Saks, 316 F.3d at 344-345 (describing Newport
News as ``focused on whether male and female employees received
equal coverage under their health benefits package'' and finding
that Newport News would not allow exclusions based on pregnancy);
id. at 345 n.2 (describing the decision in Saks as looking at
``whether the exclusion of surgical impregnation procedures result
in [a] less comprehensive benefits package for female employees'').
\54\ See Saks, 316 F.3d at 346 & n.4 (concluding that the
insurance coverage plan at issue, which did not cover treatments for
infertility regardless of capacity to become pregnant, would not
violate the PDA, but stating that ``[w]e expressly decline to
consider whether an infertile female employee would be able to state
a claim under the PDA or Title VII for adverse employment action
taken against her because she has taken numerous sick days in order
to undergo surgical impregnation procedures'').
---------------------------------------------------------------------------
As stated in the Commission Decision on Coverage of Contraception,
the PDA can cover discrimination regarding contraception when, unlike
the facts in In re Union Pacific, the challenged restriction regarding
contraception coverage is limited to those who have the capacity to
become pregnant.\55\ Thus, in the Commission Decision on Coverage of
Contraception, the exclusion of prescription contraception violated the
PDA's prohibition on sex discrimination because prescription
contraception could only be used by those who have the capacity to
become pregnant.\56\ Other courts similarly have concluded that an
insurance policy's exclusion of contraception coverage that only can be
used by those with the capacity to become pregnant violates the
PDA.\57\
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\55\ EEOC, Commission Decision on Coverage of Contraception
(Dec. 14, 2000), <a href="https://www.eeoc.gov/commission-decision-coverage-contraception">https://www.eeoc.gov/commission-decision-coverage-contraception</a>.
\56\ Enforcement Guidance on Pregnancy Discrimination, supra
note 31, at (I)(A)(3)(d) nn.37-38.
\57\ See Cooley v. DaimlerChrysler Corp., 281 F. Supp. 2d 979,
984-85 (E.D. Mo. 2003) (determining that, although the defendant
employer's policy was facially neutral, denying a prescription
medication that allows an employee to control their potential to
become pregnant is ``necessarily a sex-based exclusion'' that
violates Title VII, as amended by the PDA, because only people who
have the capacity to become pregnant use prescription
contraceptives, and the exclusion of prescription contraceptives may
treat medication needed for a sex-specific condition less favorably
than medication necessary for other medical conditions); Erickson v.
Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001)
(determining that the selective exclusion of prescription
contraceptives from an employer's generally comprehensive
prescription drug plan violated the PDA because only people who have
the capacity to become pregnant use prescription contraceptives).
Additionally, the Commission notes that those who can and cannot get
pregnant face different risks in not having access to contraception
in that the individual who may actually become pregnant bears the
exclusive risk of experiencing pregnancy-related complications,
including a variety of life-threatening conditions. U.S. Dep't of
Health & Hum. Servs., Ctrs. for Disease Control & Prevention, Urgent
Maternal Warning Signs (Nov. 17, 2022), <a href="https://www.cdc.gov/hearher/maternal-warning-signs/index.html">https://www.cdc.gov/hearher/maternal-warning-signs/index.html</a> (explaining urgent warning signs
and symptoms ``during pregnancy and in the year after delivery''
that ``could indicate a life-threating situation''); U.S. Dep't of
Health & Hum. Servs., Ctrs. for Disease Control & Prevention,
Maternal Mortality Rates in the United States, 2021 (March 2023),
<a href="https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2021/maternal-mortality-rates-2021.htm">https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2021/maternal-mortality-rates-2021.htm</a> (discussing the high rates of
maternal mortality); Am. Coll. of Obstetricians & Gynecologists and
Physicians for Reproductive Health, Abortion Can Be Medically
Necessary (Joint Statement) (Sept. 25, 2019), <a href="https://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary">https://www.acog.org/news/news-releases/2019/09/abortion-can-be-medically-necessary</a>
(``Pregnancy imposes significant physiological changes on a person's
body. These changes can exacerbate underlying or preexisting
conditions, like renal or cardiac disease, and can severely
compromise health or even cause death.'').
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[[Page 29104]]
Finally, Congress chose to write the PWFA using the same phrase as
in Title VII, as amended by the PDA, and directed the Commission to
issue regulations. Congress is presumed to have known the meaning
previously given to ``pregnancy, childbirth, or related medical
conditions'' by courts and the Commission, as well as the established
principles of statutory construction.\58\ This includes the
Commission's interpretation in its 2000 Commission Decision on Coverage
of Contraception and in its 2015 Enforcement Guidance on Pregnancy
Discrimination. Therefore, it is reasonable to conclude that Congress
expected the Commission to interpret the language in the PWFA
consistently with its interpretation of the same language in the PDA.
---------------------------------------------------------------------------
\58\ See supra note 24.
---------------------------------------------------------------------------
Thus, under the PWFA, depending on the facts, a limitation related
to contraception that affects the individual employee's potential
pregnancy can be the basis for a request for an accommodation.\59\
Whether a particular set of facts will support the necessary nexus
between contraception and an individual employee's potential pregnancy
is a determination that will be made on a case-by-case basis.
---------------------------------------------------------------------------
\59\ See H.R. Rep. No. 117-27, pt. 1, at 27 (``Throughout the
bill's text, the PWFA ensures that workers have access to reasonable
accommodations for conditions connected with a pregnancy, not just a
pregnancy itself.'').
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Comments and Response to Comments Regarding Coverage of Specific
Conditions--Other Conditions
Some comments requested that specific conditions be added to the
list in the regulation. However, inclusion on the list does not make it
more or less likely that a specific condition in a specific situation
will be considered pregnancy, childbirth or a related medical
condition--it is a fact-specific determination. Some comments requested
that the Commission opine on whether specific conditions (including
ones on which neither the courts nor the Commission have yet opined)
would be covered under ``related medical conditions'' under the PWFA.
Especially in the situations where the courts and the Commission have
not yet spoken, the Commission believes that this is something best
left to development on a case-by-case basis within specific factual
contexts.
Inclusion of Abortion in the Definition of ``Pregnancy, Childbirth, or
Related Medical Conditions''
Preliminary Considerations
The Commission received approximately 54,000 comments (most of
which were form or slightly altered form comments from individuals)
urging the Commission to exclude abortion from the definition of
``pregnancy, childbirth, or related medical conditions.'' The
Commission also received approximately 40,000 comments (most of which
were form or slightly altered form comments from individuals or sign-on
letters) supporting the inclusion of abortion in the definition of
``pregnancy, childbirth, or related medical conditions.'' \60\
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\60\ The number of comments does not require the EEOC to adopt a
specific view. U.S. Cellular Corp. vs. FCC, 254 F.3d 78,87 (D.C.
Cir. 2001) (``[T]he Commission has no obligation to take the
approach advocated by the largest number of commenters . . . ;
indeed, the Commission may adopt a course endorsed by no commenter.
The Commission's only responsibilities are to respond to comments, 5
U.S.C. 553, and to choose a reasonable approach backed up by record
evidence.'') (internal citations omitted).
---------------------------------------------------------------------------
Many of the comments urging the Commission to exclude abortion from
the definition of ``pregnancy, childbirth, or related medical
conditions'' expressed the view that abortion is the destruction of a
human life, that it is objectionable for moral or religious reasons,
and that it is not health care.\61\ The Commission recognizes these are
sincere, deeply held convictions and are often part of an individual's
religious beliefs. The Commission also received many comments that
expressed deeply held beliefs, including religious beliefs, that
abortion is a necessary part of health care and that an employer's
religious beliefs should not dictate an employee's ability to receive a
reasonable accommodation under the PWFA.
---------------------------------------------------------------------------
\61\ Some comments also expressed religious and conscience
objections to other conditions included in the definition of
``pregnancy, childbirth, or related medical conditions,'' such as
infertility treatments and contraception. The Commission has
addressed these other issues, supra, in the preamble in section
1636.3(b) Pregnancy, Childbirth, or Related Medical Conditions.
Responses to comments that object to these procedures for religious
reasons are addressed infra in the preamble in section 1636.7(b)
Rule of Construction and in the preamble in section 1636.7 under
Religious Freedom Restoration Act.
---------------------------------------------------------------------------
In the final regulation, the Commission includes abortion in its
definition of ``pregnancy, childbirth, or related medical conditions,''
as proposed in the NPRM and consistent with the Commission's and
courts' longstanding interpretation of the same phrase in Title VII.
The Commission responds to comments regarding this issue below.
Preliminarily, the Commission provides the following context to clarify
the limits of the PWFA.
First, the PWFA is a workplace anti-discrimination law. It does not
regulate the provision of abortion services or affect whether and under
what circumstances an abortion should be permitted. The PWFA does not
require any employee to have--or not to have--an abortion, does not
require taxpayers to pay for any abortions, and does not compel health
care providers to provide any abortions. The PWFA also cannot be used
to require an employer-sponsored health plan to pay for or cover any
particular item, procedure, or treatment, including an abortion.\62\
The PWFA does not require reasonable accommodations that would cause an
employer to pay any travel-related expenses for an employee to obtain
an abortion.\63\ Given these limitations, the type of accommodation
that most likely will be sought under the PWFA regarding an abortion is
time off to attend a medical appointment or for recovery. The PWFA,
like the ADA, does not require that leave as an accommodation be paid
leave, so leave will be unpaid unless the employer's policies provide
otherwise.\64\
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\62\ 42 U.S.C. 2000gg-5(a)(2) provides that nothing in the PWFA
shall be construed ``by regulation or otherwise, to require an
employer-sponsored health plan to pay for or cover any particular
item, procedure, or treatment.''
\63\ The PWFA does not prohibit an employer from taking these
actions, either.
\64\ See infra in the preamble in section 1636.3(h) under
Particular Matters Regarding Leave as a Reasonable Accommodation.
---------------------------------------------------------------------------
Second, the PWFA provides a mechanism for a qualified employee with
a known limitation related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions to receive
workplace accommodations. The term ``abortion'' is included in the
regulation's definition of ``pregnancy, childbirth, or related medical
conditions'' for the limited purpose of determining whether an employee
qualifies for a workplace accommodation under the PWFA. As shown in the
public comments, beliefs about when an abortion may be morally or
religiously permissible, even within religious traditions, are not
monolithic.
Third, despite the large number of comments that the Commission
received, the Commission's historical experience, in more than four
decades of enforcing Title VII, is that very few employers have
actually faced a situation where an employee is expressly requesting
leave for an
[[Page 29105]]
abortion and the employer declines to grant the leave on religious or
moral grounds. Since 1978, Title VII has required that employers who
provide sick leave provide that leave in a non-discriminatory manner to
women affected by pregnancy, childbirth, or related medical conditions.
This includes, and has included since 1978, allowing employees affected
by pregnancy, childbirth, or related medical conditions to use
employer-provided leave in order to have time off to have an
abortion.\65\ Yet the public comments the Commission received did not
cite any Title VII cases that ruled against the employer where a
request for leave for an abortion was at issue, and the comments did
not provide evidence that the Title VII requirement has caused problems
for employers in the past. Nonetheless, 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.
---------------------------------------------------------------------------
\65\ See 42 U.S.C. 2000e(k); 124 Cong. Rec. S18,978 (daily ed.
Oct. 13, 1978) (statement of Sen. Harrison A. Williams, Jr.) (``The
House-passed bill included a provision which would have excluded
health insurance benefits, sick leave benefits, and disability leave
benefits for abortions altogether, except where the life of the
mother would be endangered if the fetus were carried to term, or in
case of complications. The legislation which passed this body
included no such provision. After lengthy debate, and discussion of
this difficult issue, the conferees have adopted a compromise which
requires the provision of sick leave and disability benefits in
connection with an abortion on the same basis as for any other
illness or disabling condition.''); see also H.R. Rep. No. 95-1786,
at 3-4 (Conf. Rep.) (explaining the differences between the Senate
bill, the House amendment, and the substitute agreed to in
conference).
Since 1979, the Commission's guidelines have provided that
``[a]ll fringe benefits other than health insurance, such as sick
leave, which are provided for other medical conditions, must be
provided for abortions.'' 29 CFR part 1604, appendix, Question 35
(1979). This has been the EEOC's consistent interpretation for over
40 years.
In 2015, the EEOC reaffirmed that ``pregnancy, childbirth, or
related medical conditions'' includes abortions. Enforcement
Guidance on Pregnancy Discrimination, supra note 31, at
(I)(A)(4)(c); see, e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d
358, 364 (3d Cir. 2008) (``Clearly, the plain language of the
statute, together with the legislative history and the EEOC
guidelines, support a conclusion that an employer may not
discriminate against a woman employee because she has exercised her
right to have an abortion. We now hold that the term `related
medical conditions' includes an abortion.''); DeJesus v. Fla. Cent.
Credit Union, No. 8:17-CV-2502, 2018 WL 4931817, at *1 (M.D. Fla.
Oct. 11, 2018) (denying the employer's motion to dismiss in a Title
VII case where an employee used approved leave to have an abortion
and was fired shortly thereafter when her supervisor stated that the
abortion was not an appropriate excuse for her absence).
---------------------------------------------------------------------------
With this background, the Commission responds to the comments it
received.
Interpretation of ``Pregnancy, Childbirth, or Related Medical
Conditions'' as Consistent With Its Meaning in Title VII
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' as Reflected in Statutory
Text
Comments regarding the Commission's decision to include
``abortion'' in the definition of ``pregnancy, childbirth, or related
medical conditions'' made several arguments related to the statutory
text of the PWFA and Title VII.
Many comments in favor of the Commission's inclusion of abortion in
the proposed definition of ``pregnancy, childbirth, or related medical
conditions'' asserted that its inclusion accurately reflects the
statutory text of the PWFA; that the phrase ``pregnancy, childbirth, or
related medical conditions'' is taken directly from Title VII and uses
identical language; that the identical language in the PWFA and Title
VII must be interpreted consistently; that Congress' drafting the PWFA
against the backdrop of Title VII strongly suggests that its use of
Title VII's language would require the language to have the same
meaning in the PWFA, absent a clear indication to the contrary; and
that in enacting the PDA, Congress expressly stated that the statute
applied to employees who obtained abortions, confirming its statutory
intent to prohibit discrimination against employees for obtaining
abortion care, and that Congress' use of the term in the PWFA is
consistent with that underlying interpretation.
Other comments favoring the Commission's inclusion of abortion in
the definition of ``pregnancy, childbirth, or related medical
conditions'' stated that its inclusion is important for consistency and
clarity, noting that both employers and employees have relied on the
Commission's longstanding inclusion of this interpretation in guidance
to understand what constitutes ``pregnancy, childbirth, or related
medical conditions''; that applying the same definition under the PWFA
provides important consistency when litigation is brought under Title
VII and the PWFA simultaneously; and that the PWFA's drafters
intentionally drew specific terms from Title VII and the ADA to ensure
employees and employers would have a clear understanding of the meaning
of those terms.
By contrast, many comments opposing the Commission's proposed
definition stated that abortion could not be included in the definition
of ``pregnancy, childbirth, or related medical conditions'' because the
PWFA's text does not mention abortion; that Congress' intent to include
abortion in the definition of ``pregnancy, childbirth, or related
medical conditions'' cannot be inferred simply because the PWFA uses
the same language as Title VII; that the PWFA does not direct the
Commission to construct a broad definition of ``related medical
conditions''; and that the inclusion of ``pregnant workers'' in the
statute's title should exclude employees who end their pregnancies via
an abortion. Comments also stated that, under canons of statutory
interpretation, the general term ``or related medical conditions'' is
best read to cover only those concepts akin to the specific terms it
follows--and that abortion is not related to ``pregnancy'' or
``childbirth.''
Comments opposed to the Commission's inclusion of abortion in the
proposed definition of ``pregnancy, childbirth, or related medical
conditions'' also asserted that under the text of the PWFA, employers
should be required only to accommodate employees who are currently
pregnant or who give birth. For instance, comments asserting that under
the PWFA a ``related medical condition'' must be related to a current
or recent pregnancy or childbirth analogized the PWFA's accommodation
provision to the accommodation provisions under Title VII and the ADA,
which apply when an employee has a sincerely held religious belief or
practice, or a disability, respectively.
Comments also asserted that abortion is the opposite of pregnancy
and childbirth. For instance, comments stated that an abortion is
unlike pregnancy because it is a procedure that ends a pregnancy and
the possibility of childbirth from that pregnancy; and that pregnancy
is not a medical condition to be treated with an abortion.
Comments opposed to the Commission's inclusion of abortion in the
definition of ``pregnancy, childbirth, or related medical conditions''
also maintained that ``related medical conditions'' should be construed
narrowly under the PWFA. For instance, some comments stated that
Congress' inclusion of the term ``childbirth'' meant that abortion
could not be included in the regulation; that a broad definition of
``related medical conditions'' would render the term ``childbirth''
superfluous; and that the PWFA's definition should only refer to
involuntary, detrimental impacts of pregnancy, childbirth, or related
[[Page 29106]]
medical conditions. Comments stated that, in including contraception
and abortion, the Commission's definition goes beyond medical
conditions to cover medical interventions; these comments argued, for
example, that the act of obtaining reproductive health care--including
contraception and abortion--is not, by definition, a medical, physical,
or mental condition, and thus it cannot be a PWFA limitation.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' as Reflected
in Statutory Text
The Commission agrees with comments expressing support for
inclusion of abortion in the proposed definition of ``pregnancy,
childbirth, or related medical conditions'' for which a qualified
employee could receive an accommodation, absent undue hardship.
In interpreting a statute, an agency must start with its text. The
PWFA does not define the phrase ``pregnancy, childbirth, or related
medical conditions.'' For nearly 45 years, however, consistent with the
plain language of the statute, congressional intent, and Federal
courts' interpretation of the statutory text, the Commission has
interpreted ``pregnancy, childbirth, or related medical conditions'' in
Title VII to include the decision to have--or not to have--an abortion
and to prohibit discrimination in employment practices because an
employee had or did not have an abortion.\66\ Based on well-established
rules of statutory interpretation, the Commission properly interprets
``pregnancy, childbirth, or related medical conditions'' to have the
same meaning in the PWFA as it does under Title VII.\67\ As the Supreme
Court has stated, ``When administrative and judicial interpretations
have settled the meaning of an existing statutory provision, repetition
of the same language in a new statute indicates, as a general matter,
the intent to incorporate its administrative and judicial
interpretations as well.'' \68\ The Commission concludes that it would
not be consistent with Congress' intent, as expressed in its choice of
this statutory language for the PWFA, to construct a broader or
narrower definition of ``pregnancy, childbirth, or related medical
conditions'' than under Title VII. Rather, following the canons of
statutory interpretation, the Commission is using the definition that
already exists for this identical phrase under Title VII. Indeed, it is
likely that defining this phrase differently than it has been defined
in a parallel statute would exceed the Commission's congressionally
delegated authority.
---------------------------------------------------------------------------
\66\ See 29 CFR part 1604, appendix, Questions 34 & 35 (1979);
see also Enforcement Guidance on Pregnancy Discrimination, supra
note 31, at (I)(A)(4)(c).
\67\ These rules include: (1) the Prior-Construction Canon,
which states that when judicial interpretations have settled the
meaning of an existing statutory provision, repetition of the same
language in a new statute is presumed to incorporate that
interpretation; Tex. Dep't of Hous. & Cmty. Affs., 576 U.S. at 536-
37 (``If a word or phrase has been . . . given a uniform
interpretation by inferior courts . . ., a later version of that act
perpetuating the wording is presumed to carry forward that
interpretation.'') (omissions in original) (quoting Scalia & Garner,
Reading Law, at 322); Lorillard, 434 U.S. at 581 (``[W]here, as
here, Congress adopts a new law incorporating sections of a prior
law, Congress normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as it
affects the new statute.''); Hall v. U.S. Dep't of Agric., 984 F.3d
at 840 (``Congress is presumed to be aware of an agency's
interpretation of a statute. We most commonly apply that presumption
when an agency's interpretation of a statute has been officially
published and consistently followed. If Congress thereafter reenacts
the same language, we conclude that it has adopted the agency's
interpretation.'') (internal citations and quotation marks omitted);
Scalia & Garner, Reading Law at 323 (``[W]hen a statute uses the
very same terminology as an earlier statute--especially in the very
same field, such as securities law or civil-rights law--it is
reasonable to believe that the terminology bears a consistent
meaning.''); (2) the Related Statutes Canon (In Pari Materia), which
states that courts do not interpret statutes in isolation, but
rather in the context of the body of law of which they are a part,
including later-enacted statutes, so statutes addressing the same
subject matter generally should be read as if they were one law;
see, e.g., Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006);
(``[U]nder the in pari materia canon, statutes addressing the same
subject matter generally should be read as if they were one law . .
. .'') (internal citations and quotation marks omitted); and (3) the
Presumption of Legislative Acquiescence Canon, which states that
statutes adopted after certain prior judicial or administrative
interpretations may acquiesce in those interpretations; see, e.g.,
Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616, 629 n.7
(1987) (``Congress has not amended the statute to reject [the
Court's] construction [of Title VII], nor have any such amendments
even been proposed, and we therefore may assume that our
interpretation was correct.'').
\68\ Bragdon, 524 U.S. at 645.
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As set out in the NPRM, Congress previously used the phrase
``pregnancy, childbirth, or related medical conditions'' when, in
enacting the PDA, it amended Title VII to explicitly state that Title
VII's prohibition against sex discrimination includes a prohibition
against discrimination on the basis of ``pregnancy, childbirth, or
related medical conditions.'' \69\ The legislative history of the PDA
expressly stated that the PDA's protections applied to situations
involving abortions, and indeed, the statutory text enacted by Congress
explicitly excluded certain abortion procedures from health insurance
requirements, since the statute would otherwise have been read to
require their coverage, while still requiring coverage in certain
limited circumstances.\70\
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\69\ 42 U.S.C. 2000e(k).
\70\ See id. (``This subsection shall not require an employer to
pay for health insurance benefits for abortion, except where the
life of the mother would be endangered if the fetus were carried to
term, or except where medical complications have arisen from an
abortion . . . .''); H.R. Rep. No. 95-1786, at 4 (1978) (Conf.
Rep.).
---------------------------------------------------------------------------
Congress' express purpose in enacting the PWFA was to supplement
Title VII's protections for qualified employees affected by pregnancy,
childbirth, or related medical conditions; in other words, the same
employees protected by Title VII, as amended by the PDA.\71\ To that
end, Congress' approach in both laws was to ensure that employers are
not required to pay for abortions for their employees but that
employees are not discriminated against in the workplace for having
them. Further, the Commission agrees with the comments that using the
same definition that the Commission and courts have used for the same
phrase in Title VII provides important clarity and consistency for
employers and employees.
---------------------------------------------------------------------------
\71\ See supra, preamble section 1636.3(b) Pregnancy,
Childbirth, or Related Medical Conditions.
---------------------------------------------------------------------------
Using the same definition also provides clarity and consistency for
courts and harmonizes the two statutory schemes. Title VII and the PWFA
cover the same employers and employees. Having two definitions of the
same term would cause confusion for courts and potentially require them
to reach conflicting decisions. Moreover, as cases under the PWFA may,
depending on the circumstances, also be brought under Title VII, courts
could be asked to decide cases involving both Title VII's prohibition
of discrimination based on ``pregnancy, childbirth, or related medical
conditions'' and the PWFA's reasonable accommodation provision.
Even if the Commission were authorized to ignore the courts' and
its own prior longstanding, consistent interpretation of ``pregnancy,
childbirth, or related medical conditions,'' the Commission would reach
the same conclusion that the 1978 Congress did--that the phrase
``pregnancy, childbirth, or related medical conditions'' includes
choosing to have or not to have an abortion, based on the plain meaning
of the phrase ``pregnancy, childbirth, or related medical conditions.''
By definition, individuals who are choosing whether or not to have an
abortion are pregnant. And the
[[Page 29107]]
condition of being pregnant does not depend on the ultimate outcome of
the pregnancy, as highlighted by Congress extending coverage to
``childbirth'' separate from ``pregnancy.'' Thus, the term
``pregnancy'' naturally includes all of those limitations arising out
of the pregnancy itself, regardless of whether any particular pregnancy
ends in miscarriage, live birth, an abortion, or any other potential
outcome. If an employee is denied an accommodation because they are
seeking an abortion, or not seeking an abortion, that employee has
necessarily been denied an accommodation on account of their current
pregnancy. Accordingly, the decision to have or not to have an abortion
falls squarely within the ordinary meaning of the phrase ``pregnancy,
childbirth, or related medical conditions.''
Given how courts and the Commission have defined ``pregnancy,
childbirth, or related medical conditions'' in Title VII, the
Commission disagrees that the PWFA and its implementing regulation only
would apply to qualified employees who are currently pregnant or who
recently gave birth, thus implicitly excluding abortion. First, such an
interpretation would exclude qualified employees who have had
miscarriages or are otherwise no longer pregnant, which appears to be
inconsistent with the text of, and does not appear to be the intent of,
either the PWFA or the PDA.\72\ As stated above, by definition,
qualified employees who seek an abortion are either currently or
recently pregnant. Finally, the Commission sees no evidence that the
inclusion of ``childbirth'' evinces congressional intent to construct a
narrower definition of ``related medical conditions'' under the PWFA
than under Title VII, as both statutes contain this identical language.
As stated above, both the legislative history and the explicit
exclusion of certain abortion procedures from health insurance
requirements under the PDA evince Congress' intent to include abortion
in the definition of ``pregnancy, childbirth, or related medical
conditions'' under Title VII.
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\72\ See, e.g., H.R. Rep. No. 117-27, pt. 1, at 20 (discussing
the need for the PWFA, citing to a case in which an employee's
miscarriage was not covered by the ADA, and noting that ``[t]here
are many cases where courts have found that even severe
complications related to pregnancy do not constitute disabilities
triggering [ADA] protection'').
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Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' as Reflected in the
Statutory Intent and Structure of the PWFA
Many comments regarding the Commission's proposed inclusion of
abortion in the definition of ``pregnancy, childbirth, or related
medical conditions'' made arguments related to the statutory intent and
structure of the PWFA.
Comments in favor of the inclusion of abortion in the definition of
``pregnancy, childbirth, or related medical conditions,'' including
from Members of Congress, asserted that the Commission's inclusion of
abortion in the definition is consistent with the PWFA's statutory
intent and structure; that Congress' express purpose in enacting the
PWFA was to supplement Title VII's protections; that Congress adopted
the PWFA to remedy gaps in existing legal protections, including in
Title VII, and it understood how ``pregnancy, childbirth, or related
medical conditions'' is interpreted by the courts; that Congress
understood that the PWFA could include possible accommodations related
to an abortion, as evidenced by the statements of legislators who
opposed the PWFA, showing that they understood it could require
accommodations related to an abortion; that Congress recognized the
PWFA as an opportunity for Congress to finally fulfill a promise of
Title VII; and that Congress intentionally included ``related medical
conditions'' in the PWFA to encompass conditions beyond simply
pregnancy and childbirth.
Many comments in favor of the inclusion of abortion expressed that
including abortion furthers Congress' policy goal of protecting
pregnant workers from harm; that it accurately reflects the range of
needs and conditions that workers may experience that require
reasonable workplace accommodations in relation to pregnancy; that
abortion care is a safe, common, and essential component of
reproductive health care; that decisions regarding abortion are private
medical matters and should be made by patients in consultation with
their clinicians and without undue interference by outside parties; and
that providing accommodations for abortion would mean that employees
would not have to risk their health, lives, or livelihoods to access
care. Many such comments focused on specific positive health and social
outcomes that employees would enjoy if they had access to
accommodations for abortion, such as the ability to maintain personal
bodily autonomy; to choose when to have or not have children; to
receive necessary health care in the event of intimate partner
violence, rape, incest, fetal anomalies, and exposure to teratogenic
medications; and to receive necessary health care in the event of
pregnancy complications that may be so severe that abortion is the only
measure that will preserve a pregnant employee's health or save their
life--including placental abruption, bleeding from placenta previa,
preeclampsia or eclampsia, and cardiac or renal conditions.
Comments opposed to the inclusion of abortion in the definition of
``pregnancy, childbirth, or related medical conditions'' asserted that
including abortion does not reflect Congress' generally expressed
intent for the PWFA. For instance, comments stated that the PWFA's
intent only is to ensure that pregnant and postpartum women can receive
reasonable accommodations to safely work; that the PWFA's intent only
is to support mothers during pregnancy and childbirth and only to
protect and benefit the health of mothers and their fetuses, as well as
to provide accommodations for miscarriage, stillbirth, treatment of an
ectopic pregnancy, or emergency treatment intended to preserve the life
of the pregnant employee, but not an abortion; that the Commission's
interpretation turns the PWFA into a general reproductive health care
statute, defying Congress' intent; that the PWFA was intended by its
supporters to be like the ADA, which the comments construed not to
require accommodations for abortion; that Congress did not intend to
make forays into controversial social policy by enacting the PWFA; that
including abortion ignores that Congress cited statistics about working
mothers in support of the PWFA and talked about the health of the
mother and baby; and that Congress does not hide ``elephants in
mouseholes,'' and abortion is an elephant in the mousehole of
``pregnancy, childbirth, or related medical conditions.''
Some comments opposed to the inclusion of abortion also asserted
that the definition does not reflect congressional intent as expressed
by the PWFA's structure. These comments noted that Congress chose not
to amend Title VII by incorporating the PWFA. Such comments inferred
from this choice that Congress implicitly declined to import Title
VII's definition of ``pregnancy, childbirth, or related medical
conditions'' and its abortion-related requirements into the PWFA. These
comments stated that the PWFA
[[Page 29108]]
does not specifically require the same definition of ``pregnancy,
childbirth, or related medical conditions'' as Title VII, as it does
with other terms from the ADA and Title VII, and if Congress wanted the
Commission to provide examples of ``related medical conditions'' it
would have expressly said so.
Finally, some comments opposed to the proposed definition stated
that Title VII's insurance exclusion provision, which addresses
abortion and has been used to suggest that Title VII otherwise covers
abortion, is different from the PWFA's similar exclusion provision.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' as Reflected
in the Statutory Intent and Structure of the PWFA
As stated above, the Commission's inclusion of abortion in the
definition of ``pregnancy, childbirth, or related medical conditions''
is supported by the plain text of the statute and by statutory intent
and structure and is in keeping with the well-established rules of
statutory construction.\73\ Congress chose to write the PWFA using an
identical phrase, ``pregnancy, childbirth, or related medical
conditions,'' from Title VII and did not define the phrase in the PWFA.
Nor did it place any limitations or rules of construction on the
definition of the phrase in the PWFA. Accordingly, the Commission gives
the phrase the same meaning under the PWFA as it has under Title VII
for nearly 45 years. The Commission agrees that the PWFA's focus is
accommodation, but, as the text of the PWFA and the ADA state and the
Supreme Court has reiterated, accommodations are a form of
nondiscrimination.\74\ Thus, the fact that the PWFA provides
accommodations does not make it a different type of statute from Title
VII. Additionally, although Congress specifically incorporated certain
definitions into the PWFA from the ADA and Title VII, such as those for
``reasonable accommodation,'' ``undue hardship,'' ``employer,'' and
``employee,'' in those situations, the terms appear in more than one
other statute enforced by the Commission, and some of their definitions
vary across statutes.\75\ In incorporating certain terms, the
Commission understands Congress' intent as specifying which definition
it chose to adopt in the PWFA to avoid confusion. By contrast, there is
only one other statute that the Commission enforces that uses the
phrase ``pregnancy, childbirth, or related medical conditions,'' and
that is Title VII, as amended by the PDA. Therefore, Congress' intent
to use the Title VII definition in the PWFA is clear.
---------------------------------------------------------------------------
\73\ See supra note 67.
\74\ 42 U.S.C. 2000gg-1 (titled ``Nondiscrimination with regard
to reasonable accommodations related to pregnancy''); 42 U.S.C.
12112(b)(5)(A) (``[T]he term `discriminate against a qualified
individual on the basis of disability' includes . . . not making
reasonable accommodations . . . .''); see also 29 CFR part 1630,
appendix, 1630.9 (``The obligation to make reasonable accommodation
is a form of non-discrimination.''); US Airways, Inc. v. Barnett,
535 U.S. 391, 396 (2002) (``[T]he ADA says that `discrimination'
includes an employer's not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified . . .
employee, unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of
[its] business.' '') (citing 42 U.S.C. 12112(b)(5)(A)) (emphasis in
original) (omission in original).
\75\ 42 U.S.C. 2000e(b) (defining ``employer'' under Title VII),
(f) (defining ``employee'' under Title VII), (j) (defining
``religion'' with regard to an employer's obligation to ``reasonably
accommodate'' an employee's religious observance or practice absent
``undue hardship'' under Title VII); 42 U.S.C. 12111(4) (defining
``employee'' under the ADA), (5) (defining ``employer'' under the
ADA), (9) (defining ``reasonable accommodation'' under the ADA),
(10) (defining ``undue hardship'' under the ADA).
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Further supporting the Commission's interpretation of the phrase
``pregnancy, childbirth, or related medical conditions'' is the fact
that the PWFA passed as part of the Consolidated Appropriations Act,
2023 (CAA), in which Congress included several provisions explicitly
limiting the use of Federal funds for abortion.\76\ Where Congress
includes particular language in one section of a law but omits it in
another, it is generally presumed that Congress acts intentionally and
purposely in including or excluding certain language.\77\ Given that
Congress explicitly included exclusions regarding abortion in certain
sections of the CAA but omitted any such exclusion in the PWFA, the
Commission concludes that the omission was an intentional act.
---------------------------------------------------------------------------
\76\ See, e.g., sec. 613, Public Law 117-328, 136 Stat. 4459,
4699 (2022) (providing that: ``No funds appropriated by this Act
shall be available to pay for an abortion, or the administrative
expenses in connection with any health plan under the Federal
employees health benefits program which provides any benefits or
coverage for abortions.'').
\77\ Keene Corp. v. United States, 508 U.S. 200, 208 (1993)
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)). Of
note, in the debate surrounding the PWFA before its passage in the
Senate, the Senators discussed abortion. See 168 Cong. Rec. S7,049-
50 (daily ed. Dec. 8, 2022); 168 Cong. Rec. S10,071, S10,081 (daily
ed. Dec. 22, 2022). The House Report also discusses abortion. See
H.R. Rep. No. 117-27, pt. 1, at 60. Thus, both chambers were
seemingly aware of this issue, but the law does not include the type
of abortion exclusion found in other parts of the CAA.
---------------------------------------------------------------------------
The Commission's interpretation also is consistent with the
legislative history of the PDA, the statute that is the source of the
phrase, ``pregnancy, childbirth, or related medical conditions.'' The
Congressional Conference Report accompanying the PDA provides:
``Because [the PDA] applies to all situations in which women are
`affected by pregnancy, childbirth, and related medical conditions,'
its basic language covers decisions by women who chose to terminate
their pregnancies. Thus, no employer may, for example, fire or refuse
to hire a woman simply because she has exercised her right to have an
abortion.'' \78\ By including the same key phrase in the PWFA and not
articulating a different meaning than in the PDA, Congress is presumed
to know and intend that the same definition will be applied.\79\ And
given the longstanding and public interpretation of this phrase, by
both the Commission and the courts, the Commission disagrees that
adopting the same interpretation as Title VII amounts to Congress
``hiding'' an elephant in a mousehole.
---------------------------------------------------------------------------
\78\ See H.R. Rep. No. 95-1786, at 4 (1978) (Conf. Rep.).
\79\ See supra note 67.
---------------------------------------------------------------------------
Furthermore, the second sentence of the PDA states that employers
do not have to pay for health insurance benefits for abortion, except
where necessary to preserve the life of the mother or where medical
complications have arisen from an abortion.\80\ The inclusion of this
limited language regarding abortion coverage, coupled with clear
statements in the legislative history, supports the conclusion that
Congress intended for Title VII, as amended by the PDA, to protect
employees against discrimination based on abortion and that Congress
provided an exception, largely motivated by religious freedom concerns,
for employers to opt out of providing health benefits to cover the
procedure itself.\81\ Of note, the PWFA has a similar structure--it
requires employers not to discriminate against protected qualified
employees by failing to provide them reasonable accommodations, but it
does not require, or permit the Commission to
[[Page 29109]]
require, ``an employer-sponsored health plan to pay for or cover any
particular item, procedure, or treatment.'' \82\
---------------------------------------------------------------------------
\80\ See 42 U.S.C. 2000e(k).
\81\ See H.R. Rep. No. 95-948, at 7 (1978), as reprinted in 1978
U.S.C.C.A.N. 4749, 4755 (``Many members of the committee were
troubled . . . by any implication that an employer would have to pay
for abortions not necessary to preserve the life of the mother
through medical benefits or other fringe benefit programs, even if
that employer--a church organization for example--harbored religious
or moral objections to abortion; such a requirement, it was felt,
could compromise the religious freedom of such employers. The
committee, therefore, amended the language of the bill to deal with
the problem, by making clear that such employers will not be
required to pay for abortions except where the life of the mother
would be endangered if the fetus was carried to term.'' (emphasis in
original)).
\82\ 42 U.S.C. 2000gg-5(a)(2).
---------------------------------------------------------------------------
As a matter of the PWFA's plain text, therefore, the Commission
determines that the decision to have, or not to have, an abortion is
encompassed within the phrase ``pregnancy, childbirth, or related
medical conditions.'' Because this conclusion follows from the
statutory text, the Commission does not believe that other concerns
raised by commenters are relevant. The Commission's determination is
not based on the potential health or social outcomes related to
abortion; rather, the Commission's determination is based on the
statutory text. Moreover, it bears emphasizing that this rulemaking
does not require abortions or affect the availability of abortion; it
simply ensures that employees who choose to have (or not to have) an
abortion are able to continue participating in the workforce, by
seeking reasonable accommodations from covered employers, as needed and
absent undue hardship.
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and Statements From Members
of Congress and the White House About the PWFA
Some comments pointed to statements made by Members of Congress to
either support or dispute the idea that the definition of ``pregnancy,
childbirth, or related medical conditions'' in the PWFA includes
abortion. Comments also noted the absence of certain statements from
Members of Congress and the White House.
First, comments that supported the inclusion of abortion in the
definition of ``pregnancy, childbirth, or related medical conditions''
pointed to statements by opponents of the bill, whose opposition was
based on the lawmakers' views that abortion would be covered.\83\ Some
comments also pointed to an amendment proposed by Senator James
Lankford that the Senate rejected, which stated that ``[t]his division
shall not be construed to require a religious entity described in
Section 702(a) of the Civil Rights Act of 1964 to make an accommodation
that would violate the entity's religion'' \84\ as evidence that
Senators knew that abortion would be covered.
---------------------------------------------------------------------------
\83\ See, e.g., 168 Cong. Rec. S7049 (daily ed. Dec. 8, 2022)
(statement of Sen. Thomas (Thom) Tillis); 167 Cong. Rec. H2325,
H2330, H2332 (daily ed. May 14, 2021) (statements of Rep. Julia
Letlow, Rep. Robert George (Bob) Good, and Rep. Mary Miller).
\84\ 168 Cong. Rec. S10,069-70 (daily ed. Dec. 22, 2022).
---------------------------------------------------------------------------
Comments that did not support the inclusion of abortion in the
definition of ``pregnancy, childbirth, or related medical conditions''
pointed to statements made during floor debate by two of the co-
sponsors of the PWFA in the Senate, Senator Robert P. Casey, Jr.\85\
and Senator William Cassidy.\86\ These comments also mentioned that, in
a statement on the House floor, Representative Jerrold Nadler, lead
sponsor of the PWFA, explained that the PWFA should be interpreted
consistently with Title VII, stating: ``The Pregnant Workers Fairness
Act aligns with Title VII in providing protections and reasonable
accommodations for `pregnancy, childbirth, and related medical
conditions,' like lactation.'' \87\
---------------------------------------------------------------------------
\85\ 168 Cong. Rec. S7,050 (daily ed. Dec. 8, 2022).
\86\ See, e.g., id. at S7,049-50.
\87\ 168 Cong. Rec. H10,527-28 (daily ed. Dec. 23, 2022).
---------------------------------------------------------------------------
Second, comments that disagreed with the Commission's proposed
inclusion of abortion in the definition of ``pregnancy, childbirth, or
related medical conditions'' pointed to statements made by Senator
Steven Daines and Senator Cassidy after the Senate voted to add the
PWFA to the CAA, both of which stated that accommodations related to
abortion should not be covered. In addition, comments that disagreed
with the Commission's position pointed to the lack of statements by
supporters of the bill in Congress and the White House, and by advocacy
groups, regarding its coverage of abortion. Comments stated that the
PWFA would not have enjoyed bipartisan support, if the intent of the
law were to include abortion, and including abortion as a related
medical condition in the rule would make the political parties less
likely to work together.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and Statements
From Members of Congress and the White House About the PWFA
The PWFA's text, structure, and intent support the Commission's
proposed definition. Even if the Commission's interpretation were
inconsistent with the cited statements of individual Members of
Congress during the PWFA's passage, statements made by individual
Members of Congress during floor debate do not justify a departure from
an interpretation that Congress, courts, and the Commission have
consistently adhered to since the PDA was enacted more than four
decades ago. Again, the Commission's interpretation must start with the
text of the statute. Relying on the text, rather than the individual
statements of Members of Congress, follows the Supreme Court's
requirements when interpreting a statute; as the Court has noted,
``[p]assing a law often requires compromise, where even the most firm
public demands bend to competing interests. What Congress ultimately
agrees on is the text that it enacts, not the preferences expressed by
certain legislators.'' \88\
---------------------------------------------------------------------------
\88\ NLRB v. SW Gen., Inc., 580 U.S. 288, 306 (2017) (citations
omitted); see also March v. United States, 506 F.2d 1306, 1314 n.31
(D.C. Cir. 1974) (citing NLRB v. Plasterers' Loc. Union, 404 U.S.
116, 129-30 n.24 (1971) (providing that, where congressional debates
``reflect individual interpretations that are contradictory and
ambiguous, they carry no probative weight'')).
---------------------------------------------------------------------------
In addition, the Commission does not agree that the PWFA's
legislative history counsels for a different interpretation of
``pregnancy, childbirth, or related medical conditions'' than in the
PDA. For example, according to the House PWFA Committee Report, Members
knew that abortion would be covered as a pregnancy-related condition
for which some employers would need to provide accommodation.\89\
Additionally, the Commission's definition is consistent with the full
floor statement of Senator Casey and the comment that the Senator
submitted during the public comment period.\90\ Consistent with the
statutory text and Congress' intent, the PWFA does not impose a
categorical mandate on an employer to provide leave for an abortion.
Leave, like any accommodation, is subject to applicable exceptions and
defenses, including both those based on religion and on undue hardship.
Nothing in the PWFA requires an employer to pay for an abortion or
provide health care benefits for abortion in violation of State
law.\91\
---------------------------------------------------------------------------
\89\ H.R. Rep. No. 117-27, pt. 1, at 60 (stating under minority
views that ``if an employee working for a religious organization
requests time off to have an abortion procedure, H.R. 1065 could
require the organization to comply with this request as a reasonable
accommodation of known limitations related to pregnancy, childbirth,
or related medical conditions'').
\90\ 168 Cong. Rec. S7,050 (daily ed. Dec. 8, 2022); Comment
EEOC-2023-0004-98384, Sen. Robert P. Casey, Jr. (Oct. 10, 2023)
(stating that in drafting the PWFA, legislators intentionally used
terms from other laws, including ``pregnancy, childbirth, or related
medical conditions,'' and supporting the definition in the proposed
rule).
\91\ See 42 U.S.C. 2000gg-5(a)(2); 88 FR 54745 (stating that
``nothing in the PWFA requires or forbids an employer to pay for
health insurance benefits for an abortion''). Covered entities,
however, may separately be subject to the PDA's provisions regarding
abortion coverage in certain circumstances. See 42 U.S.C. 2000e(k).
---------------------------------------------------------------------------
Finally, numerous legislators submitted comments during the public
[[Page 29110]]
comment period that supported or opposed the inclusion of abortion in
the definition of ``pregnancy, childbirth, or related medical
conditions.'' As these were statements made by Members of Congress
after the passage of a bill, the Commission gave them due consideration
as statements of the views of each particular Member who signed
them.\92\
---------------------------------------------------------------------------
\92\ Cf. Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 639
n.34 (1967) (observing that statements inserted into the record
after passage of a bill are regarded as ``represent[ing] only the
personal views of the[ ] legislators'' involved). Senator Patricia
Murray, joined by 24 Senators, endorsed the Commission's
interpretation regarding the definition of ``pregnancy, childbirth,
or related medical conditions,'' Comment EEOC-2023-0004-98257, Sen.
Patricia (Patty) Murray and 24 U.S. Senators (Oct. 10, 2023); as did
Representative Jerrold Nadler, joined by 82 House Representatives,
Comment EEOC-2023-0004-98470, Rep. Jerrold (Jerry) Nadler and 82
Members of Congress (Oct. 10, 2023); and Representative Robert
Scott, Comment EEOC-2023-0004-98339, Rep. Robert C. (Bobby) Scott,
Ranking Member of the House Committee on Education and the Workforce
(Oct. 10, 2023). By contrast, Senator James Lankford's comment,
which was joined by 19 Senators, including Senator Bill Cassidy, and
41 House Representatives, disagreed with the Commission's
interpretation. Comment EEOC-2023-0004-98436, Sen. James Lankford,
19 U.S. Senators, and 41 Members of Congress (Oct. 10, 2023).
Similarly, Senator Michael Braun's comment disagreed with the
Commission's interpretation. Comment EEOC-2023-0004-98486, Sen.
Michael (Mike) Braun (Oct. 10, 2023).
---------------------------------------------------------------------------
In response to the comments regarding the political process, the
Commission cannot speculate on counterfactual scenarios such as what
might have triggered a filibuster of the PWFA in Congress, nor what
would diminish bipartisan support for future legislation. And the
Commission cannot reinterpret the definition of ``pregnancy,
childbirth, or related medical conditions'' based on the purported
absence of certain statements by Members of Congress, advocates, or the
executive branch during the bill's passage.
As explained above, the Commission must rely on the plain text of
the statute. Given the meaning of the words that Congress chose to use
in the PWFA, and the Commission's and courts' long history of
interpreting those identical words to include abortion, the Commission
will interpret those words the same way in the PWFA.
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and Administrative and
Judicial Interpretation
Many comments in favor of the Commission's inclusion of abortion in
the definition of ``pregnancy, childbirth, or related medical
conditions'' asserted that the Commission's inclusion of abortion in
the definition accurately reflects longstanding judicial and
administrative interpretations under Title VII. Comments stated that
the Commission's interpretation is correct and consistent with decades
of authority under Title VII, including legislative history, Federal
case law, and Commission guidance; that existing case law supports the
Commission's interpretation that Title VII protects employees from
discrimination for contemplating or obtaining an abortion or refusing
to submit to an employer's demand that they obtain an abortion; and
that the Commission's Enforcement Guidance on Pregnancy Discrimination
reaffirmed that choosing whether to have or not to have an abortion is
covered under the PDA.
Some comments opposed to the Commission's proposed inclusion of
abortion in the definition of ``pregnancy, childbirth, or related
medical conditions'' asserted that the Commission's definition is
contrary to judicial and administrative interpretations under Title
VII.
Some comments disputed the Commission's statement that existing
case law under Title VII supports the Commission's definition, claiming
that the decisions do not apply to the PWFA and are distinguishable;
that there is not a widespread judicial consensus about the meaning of
``related medical conditions''; and that the Commission should not rely
on lower court decisions.
Some comments took issue with the Commission's reliance on its 2015
Enforcement Guidance on Pregnancy Discrimination to interpret the
phrase ``pregnancy, childbirth, or related medical conditions'' under
the PWFA, as the Enforcement Guidance on Pregnancy Discrimination does
not receive binding judicial deference; only addresses pregnancy
discrimination, not accommodation; and was issued many years after the
PDA's enactment.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and
Administrative and Judicial Interpretation
The Commission disagrees with the comments that dispute the case
law it cited and its reliance on its Enforcement Guidance on Pregnancy
Discrimination. The Title VII decisions the Commission cited involve
situations where employers discriminated against employees because they
contemplated having, or chose to have, an abortion. These decisions
include Doe v. C.A.R.S. Protection Plus, a Third Circuit decision
relating to leave holding that an employer may not discriminate against
an employee because she had an abortion.\93\ As stated above, refusal
to provide reasonable accommodation is a form of discrimination.\94\
Finally, the Commission's reliance on its Enforcement Guidance on
Pregnancy Discrimination is appropriate because it represents and
demonstrates the consistent position of the Commission. It is
immaterial that the guidance was voted on and approved by the
Commission years after the passage of the PDA, especially given that
the year after the PDA was enacted, the Commission issued its Questions
& Answers about the PDA stating that abortion is covered under the PDA
and prohibiting discrimination in employment practices because an
employee had or did not have an abortion.\95\ Thus, the Enforcement
Guidance on Pregnancy Discrimination reconfirmed and still reflects the
Commission's decades-long position.
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\93\ 527 F.3d at 363-64 (citing, inter alia, Turic v. Holland
Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996)); see also DeJesus,
2018 WL 4931817, at *1 (denying the employer's motion to dismiss in
a Title VII case where an employee used approved leave to have an
abortion and was fired shortly thereafter when her supervisor stated
that the medical procedure was not an appropriate excuse for her
absence).
\94\ See supra note 74.
\95\ 29 CFR part 1604, appendix, Question 34 (``Q. Can an
employer discharge, refuse to hire or otherwise discriminate against
a woman because she has had an abortion?/A. No. An employer cannot
discriminate in its employment practices against a woman who has had
an abortion.''), Question 35 (``Q. Is an employer required to
provide fringe benefits for abortions if fringe benefits are
provided for other medical conditions?/A. All fringe benefits other
than health insurance, such as sick leave, which are provided for
other medical conditions, must be provided for abortions. Health
insurance, however, need be provided for abortions only where the
life of the woman would be endangered if the fetus were carried to
term or where medical complications arise from an abortion.''); see
also supra note 28 (noting that in the PWFA Congress was seeking to
protect the same employees who are protected by the PDA).
---------------------------------------------------------------------------
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and Other Laws
Some comments pointed to other laws to dispute the Commission's
definition of ``pregnancy, childbirth, or related medical conditions.''
The comments pointed to the provisions in annual appropriations
legislation, for example, the Hyde and Weldon Amendments, limiting the
use of Federal funds for abortion except in certain circumstances. The
comments also stated that Congress has never passed a law explicitly
promoting the right to abortion. Similar comments noted that
[[Page 29111]]
some States such as West Virginia and Louisiana have adopted their own
versions of the PWFA, and no court appears to have interpreted State or
local PWFAs to include abortion. Comments also stated that the
Commission should clarify whether its regulation supersedes abortion
funding restrictions in the Hyde Amendment and similar amendments, and
how the Federal Government will ensure that Federal agencies do not pay
for abortion accommodations and ensure that the same rules that apply
to the ADA regarding taxpayer funding for abortion apply to the PWFA.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and Other Laws
In interpreting the identical language from Title VII in the
context of the PWFA, the Commission cannot infer congressional intent
in a manner contrary to the plain text interpretation, particularly not
based on what Congress could have said, but chose not to say. There is
no evidence to suggest that the other Federal statutes cited by the
comments should be considered by the Commission as interpreting the
PWFA, nor is there any persuasive reason to give controlling weight to
these statutes (instead of interpreting the PWFA consistently with
Title VII, as Congress intended). Rather, the fact that Congress chose
to provide express exclusions related to abortion in the cited
statutes, including in the CAA, but did not choose to do so in the
PWFA, suggests that if Congress wanted to exclude abortion from the
definition of ``pregnancy, childbirth, or related medical conditions''
in the PWFA, it would have done so expressly.
Moreover, the PWFA, as interpreted by the Commission in this rule,
does not in any way promote abortion; it simply provides for the
possibility of an accommodation related to a qualified employee seeking
an abortion, absent undue hardship, and there is only a narrow context
in which this protection would likely apply--when an employee is
seeking leave--given the prohibitions of 42 U.S.C. 2000gg-5(a)(2).\96\
The PWFA also provides for accommodations for employees who choose not
to have an abortion, absent undue hardship.
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\96\ 42 U.S.C. 2000gg-5(a)(2) provides that ``[n]othing in this
chapter shall be construed . . . by regulation or otherwise, to
require an employer-sponsored health plan to pay for or cover any
particular item, procedure, or treatment or to affect any right or
remedy available under any other Federal, State, or local law with
respect to any such payment or coverage requirement.''
---------------------------------------------------------------------------
Further, the interpretation of State laws is not as persuasive as
the interpretation of Title VII when Congress used the same words in
both Federal statutes. Comments addressing State laws did not address
whether cases regarding abortion arose under these PWFA-analogous laws.
As stated above, despite the large number of comments on this issue,
the Commission's practical experience under Title VII shows that
litigation regarding this issue is not common. Finally, as stated
previously, the Commission's rule does not require any employer to pay
for an abortion.
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and the Dobbs Decision
Some comments stated that the Supreme Court's decision in Dobbs v.
Jackson Women's Health Org., 597 U.S. 215 (2022), which concluded that
there is no Federal constitutional right to abortion and overruled Roe
v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), affects the Commission's
rulemaking.
First, some comments said that, because the PWFA was enacted soon
after the Court issued its Dobbs decision, Congress should have stated
more clearly in the PWFA any protection for an employee seeking an
accommodation related to an abortion, if that was its intent. Second,
some comments asserted that, because of the Dobbs decision, abortion is
a State issue, not a Federal issue, that there is no Federal right to
abortion, that including abortion accommodations in the PWFA would
circumvent Dobbs, and that under Dobbs, abortion is not health care.
Comments also stated that the Title VII case law cited by the
Commission involved substantial reliance on the constitutional right to
abortion now undone by Dobbs.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and the Dobbs
Decision
Given the language that Congress used in the PWFA and the use and
interpretation of that same language in Title VII, the Dobbs decision
does not suggest a different definition of the phrase ``pregnancy,
childbirth, or related medical conditions.'' First, Congress is not
required to speak directly to a specific issue when it legislates. ``In
some cases, Congress intends silence to rule out a particular statutory
application, while in others Congress' silence signifies merely an
expectation that nothing more need be said in order to effectuate the
relevant legislative objective.'' \97\ Congress' choice to use the same
phrase in the PWFA as in Title VII, coupled with Congress' decision to
enact limitations with respect to abortion in other portions of the CAA
but not in the PWFA, supports the Commission's interpretation that
``pregnancy, childbirth, or related medical conditions'' has the same
meaning in the PWFA that it does in Title VII, and it includes
abortion. Thus, the conclusion the Commission draws from Congress' lack
of an explicit mention of abortion in the PWFA is that Congress did not
express its intent for the phrase to have any different meaning than it
has under Title VII.
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\97\ Burns v. United States, 501 U.S. 129, 136 (1991), abrogated
on other grounds as recognized by Dillon v. United States, 560 U.S.
817 (2010).
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As stated at the beginning of this discussion, the Commission's
rule does not regulate abortion or abortion procedures, nor does it
require an employer to pay for, promote, or endorse abortion.
Additionally, although Dobbs held that the U.S. Constitution's Due
Process Clause does not provide a right to abortion, that
interpretation of the Constitution does not address Congress' authority
to regulate potential employment discrimination by providing for
reasonable accommodations for pregnancy, childbirth, or related medical
conditions absent undue hardship, as Congress has done in the PWFA.
Dobbs did not involve, and the Court did not discuss, employment
protections under Title VII, and Dobbs did not purport to interpret the
meaning of the phrase ``pregnancy, childbirth, or related medical
conditions'' in Title VII. Ultimately, Dobbs concerned a matter of
constitutional interpretation and not one of statutory interpretation,
and the cases cited by the Commission in support of the inclusion of
abortion in the definition of ``pregnancy, childbirth, or related
medical conditions'' may still be relied on. Indeed, Congress enacted
the PWFA after the Dobbs decision and chose to retain the phrase
``pregnancy, childbirth, or related medical conditions'' that it had
used in Title VII without any modification or instruction. Thus, even
if Dobbs could be construed as an invitation for Congress to reevaluate
that language from Title VII, Congress did not do so.
[[Page 29112]]
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and Policy Arguments
Regarding Abortion
Many comments supported the inclusion of abortion in the definition
of ``pregnancy, childbirth, or related medical conditions'' for various
policy reasons. As discussed at length above, such reasons included,
for example, stating that it would help employees access essential
health care and have autonomy about their reproductive decisions.
By contrast, other comments stated that, as a policy matter, the
Commission should not include abortion in the definition of
``pregnancy, childbirth, or related medical conditions.'' First, some
comments speculated that including abortion in the definition will
result in employers encouraging their pregnant workers to have
abortions. Some of these comments suggested that employers might even
require pregnant workers to take leave to have an abortion instead of
another available accommodation. Second, some comments stated that
there should be no accommodations for abortion because, according to
the comments, abortion causes mental health issues for women.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and Policy
Arguments Regarding Abortion
As explained above, the Commission must rely on the plain text of
the statute. Given the words that Congress chose to use in the PWFA,
and the Commission's and courts' long history of interpreting those
identical words to include abortion, the Commission will interpret
those words the same way in the PWFA. The Commission disagrees with
commenters who argued that excluding abortion from the definition
serves the policy goals expressed by Congress in the PWFA. On the
contrary, as discussed above, the Commission concludes that including
abortion in the definition best serves the policy goals expressed by
Congress in the PWFA in that it will allow qualified employees with
known limitations related to pregnancy, childbirth, or related medical
conditions to obtain accommodations to address their needs, absent
undue hardship. While the comments make policy arguments opposed to the
inclusion of abortion in the definition of ``pregnancy, childbirth, or
related medical conditions,'' these policy objections are not a reason
for the Commission to change its interpretation and deviate from the
text of the statute and established rules of statutory construction.
Additionally, the Commission notes that some of the claims in the
comments that argued against abortion for policy reasons have been
disputed by health care professionals.\98\
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\98\ For example, the contention that abortion causes mental
health issues for women is refuted by major mental health
organizations. Am. Psych. Ass'n, Abortion (2024), <a href="https://www.apa.org/topics/abortion">https://www.apa.org/topics/abortion</a>; see also Healthline, Understanding the
Relationship Between Abortion and Mental Health (July 6, 2023),
<a href="https://www.healthline.com/health/abortion-and-mental-health">https://www.healthline.com/health/abortion-and-mental-health</a>; M.
Antonia Biggs et al., Women's Mental Health and Well-Being 5 Years
After Receiving or Being Denied an Abortion: A Prospective,
Longitudinal Cohort Study, 74 JAMA Psychiatry 169 (Feb. 2017),
<a href="https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2592320">https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2592320</a>.
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With regard to concerns that employers will force their employees
to have abortions, Title VII prohibits covered entities from taking
adverse employment actions against an employee based on their decisions
to have, or not to have, an abortion.\99\ Consistent with this
interpretation, the Commission's definition of ``pregnancy, childbirth,
or related medical conditions'' includes both having an abortion and
choosing not to have an abortion, thus protecting pregnant employees
who decide to continue their pregnancies.\100\
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\99\ See, e.g., EEOC v. Ryan's Pointe Houston, LLC, No. 19-
20656, 2022 WL 4494148, at *7 (5th Cir. Sept. 27, 2022); Velez v.
Novartis Pharms. Corp., 244 FRD. 243, 267 (S.D.N.Y. 2007) (including
a declaration by a female employee that she was encouraged by a
manager to get an abortion as anecdotal evidence supporting a class
claim of pregnancy discrimination); Enforcement Guidance on
Pregnancy Discrimination, supra note 31, at (I)(A)(4)(c).
\100\ See, e.g., Ryan's Pointe Houston, 2022 WL 4494148, at *7;
Press Release, EEOC, Best Western Hotels in Tacoma and Federal Way
To Pay $365,000 To Settle EEOC Suit for Harassment (July 5, 2012)
(announcing settlement of a harassment case by the EEOC that
included allegations that the harasser belittled the religious
beliefs of employees, including telling a pregnant employee she
should have an abortion even though she said it was against her
religious beliefs).
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Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and the Interaction Between
State Laws Regarding Abortion and the PWFA
Some comments asserted that covered entities cannot be required to
provide accommodations relating to an abortion because some State laws
prohibit abortion under certain circumstances. Some comments also noted
that some State laws provide that an individual may sue another
individual for conduct that aids in the performance of an abortion in
violation of State law. A few comments stated that the rule will compel
State and local governments to provide accommodations contrary to State
law, and that doing so transgresses limits of federalism; one comment
asserted that certain Senators were concerned about litigation against
the States and voted to remove the PWFA's text that waives State
immunity to lawsuits.
Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and the
Interaction Between State Laws Regarding Abortion and the PWFA
The Commission does not agree with comments that the inclusion of
abortion in the definition of ``pregnancy, childbirth, or related
medical conditions'' requires covered entities, including State and
local governments, to violate State laws that limit access to abortion,
nor does the rule transgress limits of federalism. The rule does not
prescribe when, where, or under what circumstances an abortion can be
obtained or what procedures may be used. If the issue of a PWFA
accommodation regarding abortion arises, it will likely concern only a
request by a qualified employee for leave from work.\101\ Accordingly,
State laws that regulate the provision of abortions in certain
circumstances do not conflict with covered entities' obligations under
the PWFA.
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\101\ 42 U.S.C. 2000gg-5(a)(2) provides that ``[n]othing in this
chapter shall be construed . . . by regulation or otherwise, to
require an employer-sponsored health plan to pay for or cover any
particular item, procedure, or treatment or to affect any right or
remedy available under any other Federal, State, or local law with
respect to any such payment or coverage requirement.'' Some comments
speculated that employers, including State and local governments,
could violate State laws restricting abortion access if they
provided leave to employees who then traveled across State lines to
obtain abortion care. The Commission notes that employees can
currently use their leave to do so, and the comments did not explain
why the leave being a reasonable accommodation under the PWFA would
create a different set of circumstances or a different result.
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Any potential interaction or conflict between PWFA and State laws,
including State laws that allow civil suits to challenge actions that
private individuals claim aid in the provision of an abortion, will be
addressed on a case-by-case basis. Of note, the PWFA does not require
an employer to pay for an abortion, and neither does the
regulation.\102\
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\102\ See 42 U.S.C. 2000gg-5(a)(2); 88 FR 54745 (stating that
``nothing in the PWFA requires or forbids an employer to pay for
health insurance benefits for an abortion''). Covered entities may,
however, be subject to Title VII's provisions regarding abortion
coverage in certain circumstances. See 42 U.S.C. 2000e(k).
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[[Page 29113]]
The Commission agrees that State and local governments are covered
employers and are required to provide accommodations under the PWFA,
absent undue hardship. As stated above, any potential interaction or
conflict between a State law and the PWFA will be addressed on a case-
by-case basis. Further, States and local governments that are covered
by the PWFA are covered by Title VII, which has protected employees'
rights to be free from discrimination in employment for having, or for
not having, an abortion for nearly 45 years, and yet comments on this
topic did not point to a situation where a State was forced to violate
its own laws. Finally, Congress did not vote to remove the section of
the PWFA that waives State sovereign immunity; that provision is in 42
U.S.C. 2000gg-4.
Ultimately, whether any particular action taken by an employer
pursuant to the PWFA could potentially implicate State law is dependent
on the content of each individual State's laws, including how those
laws are interpreted by each State's courts. As noted above, commenters
did not identify any real-world scenarios in which Title VII's
protections for employees' rights with regard to abortion have led to
employer concerns about liability under State law. To the extent any
such issues arise in connection with the PWFA, the Commission believes
they are best addressed on a case-by-case basis, particularly given the
State- and fact-specific nature of these issues.
Comments Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and the Major Questions
Doctrine
Some comments argued that to include abortion in the definition of
``pregnancy, childbirth, or related medical conditions'' implicates the
major questions doctrine.\103\
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\103\ The major questions doctrine applies to ``extraordinary
cases that call for a different approach--cases in which the history
and the breadth of the authority that [the agency] has asserted, and
the economic and political significance of that assertion, provide a
reason to hesitate before concluding that Congress meant to confer
such authority.'' West Virginia v. EPA, 597 U.S. 697, 721 (2022)
(internal quotation marks omitted). Under this doctrine, the Court
has rejected agency claims of statutory authority when: (1) the
underlying claim of authority concerns an issue of ``vast economic
and political significance,'' and (2) Congress has not clearly
empowered the agency with authority over the issue. Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 324 (2014) (internal quotation marks
omitted).
---------------------------------------------------------------------------
In claiming that the major questions doctrine applies, comments
stated that abortion has been a heated political topic or a source of
moral controversy; that the Dobbs majority and dissent both found
abortion to have important economic consequences; and that the
possibility of reasonable accommodations for an abortion meets the
threshold of deep political significance, implicating the major
questions doctrine. Comments also stated that the Commission must show
that the decision to allow for possible reasonable accommodations for
an abortion, absent undue hardship, was clear in the text of the PWFA
at the time of enactment; that if Congress wanted to put paid abortion
leave into the PWFA, it would have done so explicitly; and that the
Commission may not issue regulations with vast political significance
unless clearly directed by Congress.
By contrast, other comments disputed whether the major questions
doctrine applies to the PWFA and the Commission's definition of
``pregnancy, childbirth, or related medical conditions.'' For instance,
one detailed comment noted that the Supreme Court has limited the major
questions doctrine to a narrow category of extraordinary paradigm cases
that are very different from the posture of the PWFA rulemaking.\104\
The comment stated that none of the indicia of a major question exist
in this rulemaking--the Commission is merely interpreting a phrase the
same way it did in Title VII, with no change to the prevailing
interpretation of this longstanding statutory text. Additionally, the
comment asserted the rule does not address questions of such vast
economic and political significance as to raise a presumption against
congressional delegation of authority and the comment supported the
rule as an exercise of agency authority to interpret and implement a
statute, using the same long-established textual interpretation as in a
related statute.
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\104\ See Comment EEOC-2023-0004-98328, Professors Greer Donley,
David S. Cohen, Rachel Rebouche, Kate Shaw, Melissa Murray, and Leah
Litman (Oct. 10, 2023).
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Response to Comments Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and the Major
Questions Doctrine
The Commission disagrees that inclusion of abortion in the
definition of ``pregnancy, childbirth, or related medical conditions''
implicates the major questions doctrine. The inclusion of abortion in
the definition of ``pregnancy, childbirth, or related medical
conditions'' is for the limited purpose of qualifying for a workplace
accommodation under the PWFA, which is subject to defenses and case-by-
case assessment. Moreover, the Commission anticipates that any requests
for accommodations related to abortion will typically involve the
provision of unpaid leave. Thus, including abortion in the definition
of ``pregnancy, childbirth, or related medical conditions'' is not the
type of ``extraordinary case[ ]'' that implicates the major questions
doctrine.\105\ The Commission is simply implementing Congress' intent
by confirming that the term ``related medical conditions'' has the same
meaning given to the term in Title VII for over four decades. Thus, the
Commission is effectuating a policy decision made by Congress itself,
not claiming a ``newfound power'' that would ``represent[ ] a
transformative expansion in its regulatory authority'' or ``make a
radical or fundamental change to a statutory scheme.'' \106\ And no
court has applied the major questions doctrine to the Commission's
identical interpretation of Title VII's identical text.
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\105\ See West Virginia, 597 U.S. at 721.
\106\ Id. at 723-24 (internal quotation marks omitted).
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The provision of possible reasonable accommodations for known
limitations related to an abortion does not have the type of economic
impact found in other cases that successfully invoked the major
questions doctrine. Because the PWFA prohibits any requirement ``by
regulation or otherwise . . . [for] an employer-sponsored health plan
to pay for or cover a particular item, procedure, or treatment,'' the
Commission anticipates that most requests for accommodations related to
an abortion will involve only the provision of leave, which will likely
be unpaid.\107\ Thus, any economic impact will be minimal.
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\107\ See 42 U.S.C. 2000gg-5(a)(2).
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Further, the Commission's use of the term does not ``effec[t] a
`fundamental revision of the statute, changing it from [one sort of]
scheme of . . . regulation' into an entirely different kind''; \108\
rather, it implements a new statute by harmonizing the meaning of
``pregnancy, childbirth, or related medical conditions'' in Title VII
and the PWFA. The ``consistency of [an agency's] prior position is
significant'' when it comes to the major questions doctrine, because
``[i]t provides important context'' about what Congress ``understood''
the statute to permit.\109\
[[Page 29114]]
``Congress must be taken to have been familiar with the existing
administrative interpretation.'' \110\ The relevant statutory
language--``pregnancy, childbirth, or related medical conditions''--has
a well-documented, consistent, and historical definition, and the
Commission is within its authority to use that definition in
implementing a new statute.
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\108\ Biden v. Nebraska, 600 U.S. _, 143 S. Ct. 2355, 2373
(2023) (quoting West Virginia, 597 U.S. at 728).
\109\ FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 157
(2000).
\110\ McFeely v. Comm'r of Internal Revenue, 296 U.S. 102, 110
(1935).
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By contrast, were the Commission to stray from Title VII's
interpretation of ``pregnancy, childbirth, or related medical
conditions'' for the purpose of adopting a definition that excluded
abortion, the Commission would be taking a novel stance, contrary to
the language of the PWFA and the intent expressed by Congress in using
the language of Title VII.
Comment Regarding the Commission's Proposed Definition of ``Pregnancy,
Childbirth, or Related Medical Conditions'' and Separation of Powers
Concerns
One comment raised a constitutional objection to the Commission's
structure, asserting that the President can remove Commissioners ``only
for cause.''
Response to Comment Regarding the Commission's Proposed Definition of
``Pregnancy, Childbirth, or Related Medical Conditions'' and Separation
of Powers Concerns
The Commission disagrees that there is any constitutional defect in
the agency's structure, and, in any event, the comment provides no
basis to believe that anything about the rule or its implementation
would be different if the Commission had a different structure.
1636.3(c) Employee's Representative
Several comments suggested additions to the definition of
``employee's representative,'' including ``union representative,''
``co-worker,'' and ``manager.'' The Commission has added ``union
representative'' to the list, which is further illustrated in Example
#31. The addition reflects an important kind of representative and
differs from the other illustrative third parties listed. The
Commission has not made further changes to the list. The list in the
proposed regulation mirrors that set out in ADA \111\ policy and is not
exhaustive. Further, the Commission believes that the addition of
``manager'' would not add clarity to the definition and would risk
confusing management officials about their roles and obligations under
the PWFA.
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\111\ See EEOC, Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the ADA, Question 2 (2002) [hereinafter
Enforcement Guidance on Reasonable Accommodation], <a href="http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada">http://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada</a>.
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Other comments proposed changing ``other representative'' to what
they believe to be more descriptive language, such as ``any other
person who communicates.'' The Commission is maintaining
``representative'' because it is the language used in the statute.
Several comments recommended that the rule require the employee's
representative to have the employee's permission to communicate the
employee's limitation. The Commission expects that normally the
representative will have the employee's permission but notes that there
may be situations, for example when the employee is incapacitated,
where that may not be possible. The Commission has added this
information in the Interpretive Guidance in section 1636.3(c)
Employee's Representative. The Commission declines to delineate a
specific form or manner for an individual to be considered a
representative because this would unnecessarily increase the burden on
employees and potentially delay the processing of an accommodation
request. The PWFA intends to make seeking and obtaining an
accommodation efficient and effective. Requiring an employee to submit
evidence of their authorization to enable a third party to request an
accommodation on their behalf would thwart the PWFA's efforts to make
such communication a simple task.
Several comments proposed that once the employee's representative
has made the need for an accommodation known, the employer must then
engage in the interactive process directly with the employee. Again,
the Commission expects that this will be the normal situation but
notes, for example, that when the employee is incapacitated or the
representative is the employee's attorney, the employer may need to
continue to engage with the representative rather than the employee.
The Commission has added information to this effect in the Interpretive
Guidance in 1636.3(c) Employee's Representative. Finally, the
Commission has removed the word ``known'' before ``limitation'' in the
Interpretive Guidance for this section because the limitation is not
``known'' until it has been communicated.
1636.3(d) Communicated to the Employer
The Commission received numerous comments regarding the definition
of ``communicated to the employer,'' what information the employee
should have to provide to the employer, with whom the employee should
communicate, and what the employer can or cannot require the employee
to do after the initial request.
Several comments correctly pointed out that the statutory
definition of ``communicated to the employer'' in the PWFA does not
include a description or requirement of how the employee must request a
reasonable accommodation. Thus, the Commission has moved the
information regarding how an employee requests a reasonable
accommodation (formerly in proposed Sec. 1636.3(d)(3)) to the section
of the rule regarding reasonable accommodations (Sec. 1636.3(h)(2)).
Although these sections are now separate and therefore follow the
statutory text more closely, they have many important commonalities.
Specifically, both communicating to the employer regarding the
limitation and requesting a reasonable accommodation should be simple
processes that do not require any specific language; both can be made
to the same people at the covered entity at the same time; and for both
there are limitations as to the information the covered entity can
require. In practice, the Commission recognizes that in most cases
these communications will occur simultaneously: an employee will
communicate about their limitation in the process of informing the
employer that they need an adjustment or change at work for reasons
related to the limitation.
Thus, the final regulation's definition of ``communicated to the
employer'' consists only of Sec. 1636.3(d) introductory text and
(d)(1) and (2) from the NPRM. Paragraph (d)(3), with some
modifications, has been moved to Sec. 1636.3(h)(2).
Section 1636.3(d) of the proposed regulation stated that
``communicated to the employer'' means to make known to the covered
entity either by communicating with a supervisor, manager, someone who
has supervisory authority for the employee (or the equivalent for an
applicant), or human resources personnel, or by following the covered
entity's policy to request an accommodation. Several comments suggested
that this list include someone ``who directs the employee's tasks'' in
order to better reflect circumstances where a workplace may not use a
supervisory structure or specific job titles. The Commission agrees
that this additional language will help employees and covered entities
better understand that such communication also is appropriately
directed to those
[[Page 29115]]
individuals whom an employee would normally consult if they had a
question or concern. Thus, the final rule includes the addition of ``or
who regularly directs the employee's tasks.'' Some comments also
suggested that the Commission clarify that the entity with whom the
employee may communicate could include any agents of the employer such
as a search firm, staffing agency, or third-party benefits
administrator. The Commission has included that information in the
Interpretive Guidance in section 1636.3(d) Communicated to the Employer
and 1636.3(h)(2) How To Request a Reasonable Accommodation and has
covered these entities in the regulation by adding ``another
appropriate official,'' a term that also serves to cover other entities
with authority for the employee who may not have one of the titles used
in the rest of this portion of the regulation.
Paragraph (d)(1) has not changed from the NPRM. In paragraph
(d)(2), the Commission has added that the communication regarding the
limitation need not use specific words in order for it to be considered
``communicated to the employer.'' The Commission also has changed the
structure of this sentence so that it matches that of paragraph (d)(1)
and refers to the communication, rather than what a covered entity may
or may not require and has slightly changed the wording of the
prohibitions. For example, the proposed rule said, ``any specific
format'' and the final rule says, ``in a specific format''; and the
proposed rule said, ``any particular form'' and the final rule says,
``on a specific form.''
In the Interpretive Guidance in section 1636.3(d) Communicated to
the Employer and 1636.3(h)(2) How To Request a Reasonable
Accommodation, the Commission has combined the information for Sec.
1636.3(d) and (h)(2) to emphasize that the communication of the
limitation and the request for an accommodation will usually happen at
the same time, that both should be simple tasks, and that both are
governed by the same rules regarding with whom the employee may
communicate, and the lack of a requirement for any specific words or
forms (Sec. 1636.3(d)). The Commission also has added information
explaining that, because many situations that may qualify for coverage
under the PWFA could be classified as either a ``limitation'' (a
physical or mental condition related to, affected by, or arising out of
pregnancy, childbirth, or related medical conditions) or ``pregnancy,
childbirth, or related medical conditions,'' employees do not need to
identify a specific part of the regulation under which they believe
they are entitled to coverage in order to make a request. Employers
should not decide that an employee is not covered by the PWFA or
otherwise restrict an employee's rights under the PWFA because the
employer thinks the employee has improperly labeled something a
``limitation'' when it is better characterized as a ``related medical
condition,'' or the reverse. For example, if an employee needs bed rest
because they are pregnant and have placenta previa, the placenta previa
could be the ``physical or mental condition'' related to, affected by,
or arising out of pregnancy, or the placenta previa could be a
``related medical condition'' to pregnancy and the physical or mental
condition could be the need to limit walking or standing. In either
instance, the employee is covered by the PWFA and can request an
accommodation.
The Interpretive Guidance in section 1636.3(d) Communicated to the
Employer and 1636.3(h)(2) How To Request a Reasonable Accommodation
also has been modified to explain that an employee is not required to
identify the statute under which they are requesting a reasonable
accommodation (e.g., the ADA, the PWFA, or Title VII). Doing so would
require that employees seeking accommodations use specific words or
phrases, which the regulation prohibits.
Finally, the Commission has added information to the Interpretive
Guidance that explains the types of people with whom the employee may
communicate as set out in the final rule. The Commission has moved the
examples that were in Sec. 1636.3(d) in the NPRM to section
1636.3(h)(2) How To Request a Reasonable Accommodation in the
Interpretive Guidance and has added an explanation at the start of the
list of examples regarding the communications, rather than having an
explanation after each example.
1636.3(e) Consideration of Mitigating Measures
The Commission received very few comments concerning mitigating
measures. The language in the final rule is unchanged from the proposed
rule and is the same as the language in the ADA regulation, except that
the Commission made a minor edit for accuracy to remove the word
``known'' from Sec. 1636.3(e)(1). This edit is necessary because the
consideration of mitigating measures would only affect the
determination of whether an employee has a limitation and not whether
that limitation is ``known.'' The Commission further changed language
in the Interpretive Guidance in section 1636.3(e) Consideration of
Mitigating Measures slightly to point out that the ameliorative effects
of mitigating measures can be considered when determining the
appropriate reasonable accommodation.\112\
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\112\ The Commission notes that ``mitigating measures'' for the
purposes of the PWFA are not the same as ``mitigation measures''
taken as part of occupational safety and health which refer to
actions taken by employers. See, e.g., U.S. Dep't of Health & Hum.
Servs., Ctrs. for Disease Control & Prevention, Nat'l Inst. for
Occupational Safety & Health, Hierarchy of Controls (Jan. 17, 2023),
<a href="https://www.cdc.gov/niosh/topics/hierarchy/default.html">https://www.cdc.gov/niosh/topics/hierarchy/default.html</a>.
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1636.3(f) Qualified Employee
1636.3(f)(1) With or Without Reasonable Accommodation
The Commission received very few comments concerning the definition
of ``qualified employee'' as an employee who, with or without
reasonable accommodation, can perform the essential functions of the
job. The final rule maintains the language from the proposed rule,
which uses the language from the ADA.
The Commission also did not receive many comments regarding the
definition of ``qualified'' for the reasonable accommodation of leave
and has maintained that definition and the language in Sec.
1636.3(f)(1) and in the Interpretive Guidance in section 1636.3(f)(1)
under ``Qualified'' for the Reasonable Accommodation of Leave. The
Commission addresses other comments it received regarding leave as a
reasonable accommodation in the preamble in section 1636.3(h) under
Particular Matters Regarding Leave as a Reasonable Accommodation.
1636.3(f)(2) Temporary Suspension of an Essential Function(s)
The Commission received numerous comments regarding the definition
of ``qualified'' with regard to the temporary suspension of essential
function(s), the definition of ``temporary,'' the definition of ``in
the near future,'' how different periods of temporary suspension of
essential function(s) should be considered, whether more than one
essential function can be suspended, and the meaning of ``can be
reasonably accommodated.''
Preliminarily, it is important to emphasize that the definition of
``qualified'' that includes the temporary suspension of an essential
function is taken directly from the text of the statute. It is not a
creation of the Commission, and the Commission could not ignore it or
read it out of the statute, as some comments suggested. Second,
[[Page 29116]]
as noted in the NPRM, this definition of ``qualified'' is relevant only
when an employee cannot perform one or more essential functions of the
job in question, with or without a reasonable accommodation, due to a
known limitation. It is not relevant in any other circumstance. If the
employee can perform the essential functions of the position with or
without a reasonable accommodation, the first definition of
``qualified'' applies (i.e., able to do the job with or without a
reasonable accommodation). Third, this definition is relevant solely to
determining whether an employee is ``qualified.'' An employer may still
defend the failure to provide a reasonable accommodation based on undue
hardship. Thus, the Commission responds to concerns regarding the
possible disruption of production or scheduling or difficulties in
accommodating the temporary suspension of an essential function(s) that
a certain employer may face in the discussion of undue hardship (in the
preamble in section 1636.3(j)(3) Undue Hardship--Temporary Suspension
of an Essential Function(s)) rather than in the discussion of the
definition of ``qualified.''
1636.3(f)(2)(i) Temporary
The Commission received several comments regarding the definition
of ``temporary.'' Some asserted that the Commission's definition was
subsumed by the definition of ``in the near future,'' while others
argued that the definitions of ``temporary'' and ``in the near future''
should be the same. The Commission has not changed the definition of
``temporary.'' As Congress set out two terms (``temporary'' and ``in
the near future''), the Commission should define both and not assume
that they are the same. The definition that the Commission proposed in
the NPRM for ``temporary'' is consistent with the dictionary definition
of this term and the legislative history of the provision.\113\
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\113\ 88 FR 54777.
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1636.3(f)(2)(ii) In the Near Future
The Commission's proposed definition of ``in the near future'' had
four parts: (1) how long this would be for a current pregnancy
(generally 40 weeks); (2) how long this should be for conditions other
than a current pregnancy (generally 40 weeks); (3) how leave should not
count in the determination of the time for which an essential
function(s) is temporarily suspended; and (4) how to address successive
periods of suspension of essential function(s). As discussed below, the
Commission is maintaining the provisions in the NPRM for issues 1, 3,
and 4.
Comments and Response to Comments Regarding the Definition of ``In the
Near Future''
The NPRM proposed that for both a current pregnancy and conditions
other than a current pregnancy it would be presumed that the employee
could perform the essential functions of the position ``in the near
future'' if they could do so within generally 40 weeks.
Many comments supported the idea that for a current pregnancy, an
employee would be considered qualified if they could perform the
essential function(s) generally within 40 weeks of the suspension of
the essential function(s). As these comments pointed out, this would
allow a pregnant employee the ability to continue working and earning a
paycheck during their pregnancy, even if due to a known limitation they
had to temporarily suspend an essential function(s). As one comment
noted, a shorter time could lead to ``dangerous and perverse
consequences'' such as employees ``saving up'' their ability to request
the temporary suspension of essential function(s), leading to potential
risks to their health or the health of their pregnancy early in the
pregnancy, or employees being temporarily excused from essential
function(s) early in their pregnancy only to have to resume them later
in their pregnancy in order to keep earning a paycheck.\114\
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\114\ Comment EEOC-2023-0004-98298, A Better Balance 29-30 (Oct.
10, 2023).
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Several comments argued against the definition of ``generally 40
weeks'' for a current pregnancy, stating that such a long time was not
within the intent of Congress, was outside the scope of the
Commission's regulatory authority, and was not in keeping with how
courts have defined this term in cases regarding leave and the ADA.
For conditions other than a current pregnancy, including post-
pregnancy, the NPRM also proposed ``in the near future'' to mean
generally 40 weeks. Several comments, based on the health care studies
cited in the NPRM, recommended that for post-pregnancy reasons the
definition of ``in the near future'' should be 1 year. These comments
also recommended that the definition of ``in the near future'' for
lactation-related accommodations that require the temporary suspension
of an essential function(s) be 2 years, based on the recommendation of
the American Academy of Pediatrics.
Other comments pointed out that although pregnancy has a generally
accepted length, other conditions do not. As a result, these comments
asserted, an individualized assessment, akin to when a person with a
disability is having surgery and then must go on leave, is more
appropriate. Other comments suggested that the definition should be
less than 6 months, based on an ADA case cited in the House Report on
the PWFA.\115\
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\115\ H.R. Rep. No. 117-27, pt. 1, at 28 (citing Robert v. Bd.
of Cnty. Comm'rs of Brown Cnty., 691 F.3d 1211, 1218 (10th Cir.
2012)). However, the Commission notes that the House Report does not
assign a definition to ``in the near future.'' Although Robert notes
an Eighth Circuit case that found that a 6-month leave request ``was
too long to be a reasonable accommodation,'' it stated that with
respect to the durational element of in the ``near future,'' ``this
court has not specified how near that future must be'' and declined
to address whether a more than 6-month accommodation ``exceeded
reasonable durational bounds.'' Robert, 691 F.3d at 1218.
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In the final rule, the Commission has changed the provision in the
regulation defining ``in the near future'' at Sec. 1636.3(f)(2)(ii) so
that the determination will be made on a case-by-case basis. This
determination, however, includes the concept from the NPRM's definition
of ``in the near future,'' which explained that, if the employee is
pregnant, it is assumed that the employee could perform the essential
function(s) in the near future because they could perform the essential
function(s) within generally 40 weeks of their suspension.
The Commission is retaining ``generally 40 weeks'' \116\ in the
final regulation's definition of ``in the near future'' for pregnant
employees for several reasons. First, one of the purposes of the PWFA
is to provide pregnant employees with the ability to keep working while
they are pregnant in order to protect their economic security as well
as their health and the health of their pregnancy. Given the
established length of pregnancy, this goal cannot be met if the
employee is not considered qualified simply because they have to
suspend an essential function(s) for generally 40 weeks. Second,
Congress did not provide a definition for ``in the near future'' but
did give the Commission rulemaking authority for the statute.\117\
Defining terms within a statute that have not been defined by Congress
is well within the rulemaking authority of the agency directed by the
law to write rules for it.\118\ Furthermore,
[[Page 29117]]
as explained below, courts have generally determined that indefinite
amounts of time cannot be ``in the near future.'' Because pregnancy by
definition is not indefinite, defining ``in the near future'' to be the
length of a pregnancy is consistent with the views of courts and with
the purpose of the PWFA.
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\116\ One comment noted that pregnancy can last 42 weeks or
longer. To account for this, the EEOC is using the phrase
``generally 40 weeks.''
\117\ 42 U.S.C. 2000gg-3(a).
\118\ See AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397
(1999) (``Congress is well aware that the ambiguities it chooses to
produce in a statute will be resolved by the implementing
agency.''); Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735,
740-41 (1996) (``[T]hat Congress, when it left ambiguity in a
statute meant for implementation by an agency, understood that the
ambiguity would be resolved, first and foremost, by the agency, and
desired the agency (rather than the courts) to possess whatever
degree of discretion the ambiguity allows.''); Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (``The
power of an administrative agency to administer a congressionally
created . . . program necessarily requires the formulation of policy
and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.'') (omission in original) (citation
omitted).
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Those who opposed generally 40 weeks as the definition of ``in the
near future'' for pregnant employees did not explain how a shorter
definition would impact pregnant employees or why the definition should
change from workplace to workplace, given the established length of
pregnancy. Given that there is a history of employers failing to
provide pregnant employees light duty positions to the severe detriment
of those employees, even after the Supreme Court's decision in Young v.
United Parcel Service,\119\ and Congress' awareness of this
problem,\120\ the Commission believes it is necessary to define ``in
the near future'' for the PWFA's second definition of ``qualified'' as
the full length of a pregnancy. The Commission agrees with comments
stating that a shorter period of time could create situations where an
employee continues to perform an essential function(s) in order to save
time when they are not required to perform the essential function(s)
for later in their pregnancy or following childbirth, thus imperiling
their health or the health of the pregnancy, or where an employee is
forced to return to the performance of an essential function(s) later
in their pregnancy, despite the health risks. The Commission reiterates
that this rule does not mean that a pregnant employee is automatically
entitled to the temporary suspension of one or more essential functions
for 40 weeks, or that the employee will need the suspension of one or
more essential functions for 40 weeks. The temporary suspension must be
able to be reasonably accommodated, and the employer retains the
ability to establish that the reasonable accommodation causes an undue
hardship.
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\119\ 575 U.S. 206; see, e.g., EEOC v. Wal-Mart Stores E., L.P.,
46 F.4th 587 (7th Cir. 2022); Legg v. Ulster Cnty., 820 F.3d 67 (2d
Cir. 2016).
\120\ H.R. Rep. No. 117-27, pt. 1, at 14-17.
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The Commission agrees that there should not be a presumptively
consistent measure of the term ``in the near future'' for issues other
than current pregnancy. The physical or mental conditions related to,
affected by, or arising out of pregnancy, childbirth, or related
medical conditions faced by employees other than those who are
currently pregnant certainly may be serious and may, in some cases,
mean that an employee may seek to have one or more essential functions
of the job temporarily suspended. Unlike a current pregnancy, however,
there is not a consistent measure of how long these diverse conditions
generally will last or, thus, of what ``in the near future'' might mean
in these instances.
In explaining the inclusion of this additional definition of
``qualified,'' the House Report analogized the suspension of an
essential function under the PWFA to cases under the ADA regarding
leave.\121\ Thus, ADA leave cases provide some helpful guideposts for
employers and employees to understand this term in the context of
whether an employee is ``qualified'' under the PWFA in situations not
involving a current pregnancy. First, an employee who needs indefinite
leave (that is, leave for a period of time that they cannot reasonably
estimate under the circumstances) cannot perform essential job
functions ``in the near future.'' \122\ Similarly, a request to
indefinitely suspend an essential function(s) cannot reasonably be
considered to meet the standard of an employee who could perform the
essential function(s) ``in the near future.'' However, the Commission
notes that the temporary suspension of an essential function(s) is not
``indefinite'' simply because the employee cannot pinpoint the exact
date when they expect to be able to perform the essential function(s)
or can provide only an estimated range of dates.\123\ Nor do these
circumstances mean that the employee cannot perform the job's essential
functions ``in the near future.'' \124\
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\121\ Id. at 27-28.
\122\ Id.; see also, e.g., Herrmann v. Salt Lake City Corp., 21
F.4th 666, 676-77 (10th Cir. 2021); Cisneros v. Wilson, 226 F.3d
1113, 1129 (10th Cir. 2000), overruled on other grounds by Bd. of
Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
\123\ See, e.g., Randall v. Smith & Edwards Co., 1:20-CV-00183,
2023 WL 3742818, at *33-*34 (D. Utah May 31, 2023) (determining that
the employee, who requested leave to undergo liver transplant
surgery, presented enough evidence to allow a reasonable jury to
conclude that his leave request was not indefinite where evidence
indicated that the employer understood that he could undergo the
transplant ``any day'' and ``would return to work within, at most,
12 weeks of his surgery''); Ellis v. Salt Lake City Corp., 2:17-CV-
00245, 2023 WL 2742756, at *11-*12 (D. Utah Mar. 31, 2023)
(concluding that the employee's request to remain on leave until the
appeal of her demotion was resolved was not a request for indefinite
leave, as she ``provided a general timeframe for her return in the
near future''), appeal filed (10th Cir. May 2, 2023); Johnson v.
Del. Cnty. Cmty. Coll., 2:15-CV-01310, 2015 WL 8316624, at *1, *5
(E.D. Pa. Dec. 9, 2015) (determining that a custodian, who was on
medical leave for nearly 5 months due to a knee injury and requested
``a brief extension of medical leave'' to undergo surgery and
physical therapy, ``did not request an indefinite leave''); Criado
v. IBM Corp., 145 F.3d 437, 443-44 (1st Cir. 1998) (concluding that
an employee's request for additional leave to ``allow her physician
to design an effective treatment program'' with no specific return
date given could be a reasonable accommodation); Graves v. Finch
Pryun & Co., 457 F.3d 181, 185-86 (2d Cir. 2006) (reasoning that an
employee's request ``for `more time' to get a doctor's appointment''
that would take ``maybe a couple weeks'' was not a request for
indefinite leave).
\124\ The fact that an exact date is not necessary is supported
by the definition in the statute, which requires that the essential
function(s) ``could'' be performed in the near future. 42 U.S.C.
2000gg(6)(B).
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Beyond an agreement that an indefinite amount of time does not meet
the standard of ``in the near future,'' courts' definitions of how long
a period of leave may be under the ADA and still be a reasonable
accommodation (thus, allowing the individual to remain qualified)
vary.\125\ The Commission
[[Page 29118]]
believes, however, that depending on the facts of a case ``in the near
future'' may extend beyond the 6-month limit suggested by some comments
under the PWFA for three reasons.
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\125\ See, e.g., Robert, 691 F.3d at 1218 (citing a case in
which a 6-month leave request was too long to be a reasonable
accommodation but declining to address whether, in the instant case,
a further exemption following the 6-month temporary accommodation at
issue would exceed ``reasonable durational bounds'') (citing Epps v.
City of Pine Lawn, 353 F.3d 588, 593 (8th Cir. 2003)); see also
Blanchet v. Charter Commc'ns, LLC, 27 F.4th 1221, 1225-26, 1230-31
(6th Cir. 2022) (determining that a pregnant employee who developed
postpartum depression and requested a 5-month leave after her
initial return date and was fired after requesting an additional 60
days of leave could still be ``qualified,'' as additional leave
could have been a reasonable accommodation); Cleveland v. Fed.
Express Corp., 83 F. App'x 74, 76-81 (6th Cir. 2003) (declining ``to
adopt a bright-line rule defining a maximum duration of leave that
can constitute a reasonable accommodation'' and determining that a
6-month medical leave for a pregnant employee with systemic lupus
could be a reasonable accommodation); Garcia-Ayala v. Lederle
Parenterals, Inc., 212 F.3d 638, 641-42, 646-49 (1st Cir. 2000)
(reversing the district court's finding that a secretary was not a
``qualified individual'' under the ADA because additional months of
unpaid leave could be a reasonable accommodation, even though she
had already taken over year of medical leave for breast cancer
treatment, and rejecting per se rules as to when additional medical
leave is unreasonable); Nunes v. Wal-Mart Stores, Inc., 164 F.3d
1243, 1245-1247 (9th Cir. 1999) (holding that, because extending
leave to 9 months to treat a fainting disorder could be a reasonable
accommodation, an employee's inability to work during that period of
leave did not automatically render her unqualified); Cayetano v.
Fed. Express Corp., No. 1:19-CV-10619, 2022 WL 2467735, at *1-*2,
*4-*7 (S.D.N.Y. July 6, 2022) (determining that an employee who
underwent shoulder surgery could be ``qualified'' because 6 months
of leave is not per se unreasonable as a matter of law); Durrant v.
Chemical/Chase Bank/Manhattan Bank, N.A., 81 F. Supp. 2d 518, 519,
521-22 (S.D.N.Y. 2000) (concluding that an employee who was on leave
for nearly 1 year due to a leg injury and extended her leave to
treat a psychiatric condition could be ``qualified'' under the ADA
with the accommodation of additional leave of reasonable
duration).The Commission is aware of and disagrees with ADA cases
that held, for example, that 2 to 3 months of leave following a 12-
week FMLA period was presumptively unreasonable as an accommodation.
See, e.g., Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481
(7th Cir. 2017).
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First, what constitutes ``in the near future'' may differ depending
on factors including, but not limited to, the known limitation and the
employee's position. For example, an employee whose essential job
functions require lifting during only the summer months would remain
qualified even if unable to lift during a 7-month period over the fall,
winter, and spring months because the employee could perform the
essential function ``in the near future'' (in this case, as soon as the
employee was required to perform that function). Second, the
determination of whether the employee could resume the essential
function(s) of their position in the near future is only one aspect of
establishing that an employee is qualified despite not being able to
perform an essential function(s). If the temporary suspension cannot be
reasonably accommodated or if the temporary suspension causes an undue
hardship, the employer is not required to provide a reasonable
accommodation. Third, as detailed in the NPRM, especially in the first
year after giving birth, employees may experience serious health issues
related to pregnancy, childbirth, or related medical conditions that
may prevent them from performing the essential function(s) of their
positions.\126\ Accommodating these situations and allowing employees
to stay employed is one of the key purposes of the PWFA. To assist
employers and employees in making this determination, the Commission
has added several examples in the Interpretive Guidance in section
1636.3(f)(2) Qualified Employee--Temporary Suspension of an Essential
Function(s) regarding ``in the near future'' and non-pregnancy
conditions.
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\126\ See Susanna Trost et al., U.S. Dep't of Health & Hum.
Servs., Ctrs. For Disease Control & Prevention, Pregnancy-Related
Deaths: Data from Maternal Mortality Review Committees in 36 U.S.
States, 2017-2019 (2022), <a href="https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html">https://www.cdc.gov/reproductivehealth/maternal-mortality/erase-mm/data-mmrc.html</a> (stating that 53% of
pregnancy-related deaths occurred from one week to one year after
delivery, and 30% occurred one- and one-half months to one year
postpartum).
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Additionally, the Commission disagrees that the terms ``temporary''
and ``in the near future'' should be defined using the definition of
``transitory'' under the ADA.\127\ Congress knew of this definition but
decided not to incorporate it into the PWFA and used different terms
(``temporary'' and ``in the near future,'' not ``transitory'').
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\127\ 42 U.S.C. 12102(3)(B).
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Comments and Response
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