State Challenges to the Equal Employment Opportunity Commission’s
Rule Interpreting the Pregnant Workers Fairness Act

By Samantha Halem, Alicia Ward   July 10, 2024

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule
(the “Final Rule”) to implement the Pregnant Workers Fairness Act (PWFA), which took effect on
June 18, 2024. The PWFA requires covered employers to make 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 employer’s
business operations.

The Final Rule specifies that “limitation” means a physical or mental condition related to, affected
by, or arising out of pregnancy, childbirth, or related medical conditions. The physical or mental
condition must be “related to, affected by, or arising out of” pregnancy, childbirth, or related
medical conditions. According to the Final Rule, “related to, affected by, or arising out of” is an
inclusive term.

Days after the EEOC issued the Final Rule, 17 states filed an action challenging the regulation. The
challenges were limited to aspects of the regulation that deal with an “elective abortion” (i.e., “an
abortion prompted exclusively by the woman’s choice, where no ‘physical or mental condition
related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. . .’
exists, but where getting the abortion creates some limitations on the employee’s ability to do her
job.”). On June 14, 2024, the U.S. District Court, Eastern Division of Arkansas dismissed the lawsuit
without prejudice. In dismissing the lawsuit, the Court determined that the plaintiff states lacked
standing as they failed to demonstrate a likelihood of harm. The 17 states appealed to the U.S.
Court of Appeals for the Eighth Circuit. The Eighth Circuit denied their request for an administrative
stay and injunction pending appeal. Following the July and August briefing schedule, oral
arguments will be set during the September 2024 session of court in St. Louis, Missouri.
Separately, in the eleventh hour leading up to effective date of the Final Rule, Louisiana, Mississippi,
and several Catholic organizations were successful in seeking a preliminary injunction. In partially
granting the plaintiffs’ motion for a preliminary injunction, the U.S. District Court for the Western
District of Louisiana postponed the effective date of the Final Rule’s requirement that covered
entities provide accommodation for the elective abortions of employees that are not necessary to
treat a medical condition related to pregnancy. Additionally, with respect to these plaintiffs, the
Court preliminarily enjoined the EEOC from: (1) initiating any investigation into claims that a
covered employer has failed to accommodate an elective abortion that is not necessary to treat a
medical condition related to pregnancy; and (2) issuing any notice of right to sue with respect to the
same.

Hirsch Roberts Weinstein will continue to monitor future developments. In the meantime,
employers should familiarize themselves with the PFWA along with the Final Rule, ascertain how
the requirements of the PWFA impacts existing accommodation policies, procedures, and forms,
and train Human Resources professionals and management regarding its implications on the
workforce. Additionally, employers should continue to remain vigilant of both existing and
developing state and local laws governing workforce accommodations, including those arising out
of pregnancy, childbirth, or related medical conditions that may meet or exceed those rights and
obligations established by federal law.[1]

The growing nuances of federal, state, and local laws are complex, especially for employers with a
multijurisdictional workforce. Hirsch Roberts Weinstein can work with businesses to develop and/
or review training, policies, procedures, and forms to support compliance efforts.

Questions/Compliance Assistance

If you have any questions about, please contact:
• Samantha Halem (shalem@hrwlawyers.com / 781-235-4878);
• Alicia Ward (award@hrwlawyers.com / 617-348-4357); or
• Any member of the HRW Team


¹The Loper Bright Enters. v. Raimondo, No. 22-451, and Relentless, Inc. v. Department of Commerce, No. 22-1219 (June 28, 2024) (overruling Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)) may impact pending and trigger future legal challenges to agency regulations and interpretations.

 

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