Biden Administration to Mandate Employers Grant Leave for Workers to Obtain Abortions

The new rule is part of the commission’s efforts to implement the Pregnant Workers Fairness Act (PWFA), according to a final EEOC rule change announcement.

Despite the 54,000 comments against it, the EEOC said it would move forward with the rule change.
Despite the 54,000 comments against it, the EEOC said it would move forward with the rule change. (photo: GagliardiPhotography / Shutterstock)

The Biden administration’s Equal Employment Opportunity Commission (EEOC) is set to change federal regulations regarding pregnant workers’ fairness to mandate employers make “reasonable accommodations,” including granting leave, for workers to obtain abortions.

The new rule, which is set to take effect 60 days from its publication on April 19, is part of the commission’s efforts to implement the Pregnant Workers Fairness Act (PWFA), according to a final EEOC rule change announcement.

The final rule expands the scope of accommodations that employers must make for “pregnancy, childbirth, or related medical conditions” to also include workers’ decisions about “having or choosing not to have an abortion.”

The rule applies to all public and private employers with 15 or more workers and is contingent on the accommodations not presenting an “undue hardship on the operation of the business of the covered entity.” 

The commission said the rule change is part of its effort to “carry out the law” in accordance with the PWFA, which was passed in 2022.

The 19th, a pro-abortion nonprofit, celebrated the rule change, saying that, “at a minimum,” it means employers must provide unpaid time off for abortion.

After first announcing the planned change in the Federal Register in August 2023, the commission allowed 60 days for public comment. During that time the commission received 54,000 comments against the inclusion of abortion and 40,000 in support.

Despite the 54,000 comments against it, the EEOC said it would move forward with the rule change. The commission said that though it “recognizes these are sincere, deeply held convictions and are often part of an individual’s religious beliefs,” it believes that the decision to include abortion is “consistent with the plain language of the statute, congressional intent, and federal courts’ interpretation of the 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,” the EEOC said.

EEOC Commissioner Kalpana Kotagal said the change is consistent with the PWFA and “advances the promise that pregnant and postpartum workers should not have to choose between their health and a paycheck.”

The PWFA was supported by the U.S. Conference of Catholic Bishops (USCCB) when it was being considered by Congress, despite some concerns at the time that the bill could be used to force employers to pay for abortion expenses.

Republican Sen. Rand Paul of Kentucky expressed such concerns, with a spokesperson telling CNA at the time that “the bill could force religious employers to provide accommodations that arise from an abortion, which could violate the free exercise of their religious beliefs.”

One of the comments submitted to the EEOC against the inclusion of abortion was a 20-page joint statement issued by the USCCB and the Catholic University of America.

Signed by three USCCB attorneys and Catholic University President Peter Kilpatrick, the statement said the rule change presents dangers to human life, religious liberty, and free speech.

“In passing the PWFA,” the statement said, “Congress had no intention to create conscience problems for employers.”

“Although the USCCB and Catholic University share the goals of better supporting pregnant women and mothers in the workplace, we are deeply concerned about the EEOC’s insertion of a right to abortion-related accommodations into a legal regime where it has no place,” the joint statement said.

The commission claimed that concerns about employers’ religious objections were unwarranted because, it noted, “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.’”

Washington Surgi-Clinic on F St. NW in Washington, D.C., on April 7, 2022.

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