As we previously reported, the U.S. Equal Employment Opportunity Commission’s (EEOC) final rule on the Pregnant Workers Fairness Act (PWFA) went into effect on June 18, 2024. The final rule provides guidance on how the EEOC will interpret and enforce the PWFA, including with respect to conditions that may qualify for accommodation, examples of what constitutes an accommodation, and clarification on the process through which employers and employees engage in the interactive process to obtain an accommodation.
Legal challenges to the final rule
The final rule has been the subject of several legal challenges. Recently, a U.S. District Judge in Louisiana issued a preliminary injunction that partially blocks the provision in the final rule requiring workplace accommodations for “purely elective abortions.” In the final rule, the EEOC takes the position that a person’s choice to have (or not have) an abortion qualifies as a medical condition that falls under the PWFA’s purview. The constitutionality of the final rule was challenged by the attorneys general of Louisiana and Mississippi, along with four religious organizations.
As a result of the injunction, the final rule is temporarily paused from being applied to the states of Louisiana and Mississippi and their agencies, “any covered entity… with respect to all employees whose primary duty station is located” in those two states (to the extent that “purely elective abortions” must be accommodated), and the plaintiff religious organizations. As a practical matter, the order prevents the EEOC from “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” or issuing a Right to Sue Notice for the same.
Some courts, however, have taken the opposite approach when adjudicating challenges to the elective abortion component of the final rule. A federal district court in Arkansas ruled that several state attorneys general did not have standing to challenge the final rule. The Eighth Circuit also recently denied an application for injunctive relief vis-à-vis the final rule filed by state attorneys general. Because courts are taking different approaches to the final rule, the aspects with which employers must comply, at least for the time being, may ultimately vary based on jurisdiction.
Further uncertainty due to the overturning of Chevron
Adding further uncertainty to the final rule’s status is the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, 603 U.S. _ (2024). In sum, Loper overturned Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), which required courts to defer to agency regulations if the language of the law was ambiguous and the agency’s interpretation was reasonable. Generally speaking, in Loper, the Court held that courts may not defer to an agency’s interpretation of a law simply because the law is ambiguous; rather, they must exercise independent judgment in interpreting a law and reviewing the agency’s interpretation, unless the law provides express authorization for an agency to act.
While Loper did not pertain to employment law or the PWFA specifically, it is anticipated that the ruling will result in challenges to a variety of employment law regulations issued by federal agencies, including the final rule.
At present, employers should continue to comply with the final rule (except, as noted above, in Louisiana and Mississippi). We will continue to monitor for updates on the final rule. If you have any questions about the implications of the PWFA or the final rule, Reed Smith’s experienced employment attorneys are available to help.