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New rules protect pregnant workers, but red states sue over abortion provisions

New federal worker protection rules that include abortion care among the conditions covered are set to go into effect June 18
May 27, 2024

Natasha Jackson was four months pregnant when she told her supervisor she was expecting. It was 2008, and Jackson was an account executive at a rental furniture store in Charleston, South Carolina — the only female employee there.

“I actually hid my pregnancy as long as I could because I was scared about what could happen,” she said.

When her doctor recommended that she not lift more than 25 pounds, her employer wouldn’t let her move temporarily to a role where she didn’t need to lift furniture, even though those roles were available, she said. She was forced to go on leave and then lost her job. Her marriage unraveled and she spent time after the birth in emergency housing.

“That hardship affected me years on, and it took away the joy of being pregnant,” said Jackson. “They made me feel guilty and ashamed for having a baby.”

Jackson, now 41 and a mother of four who owns her own cleaning company, has spent years working with advocacy groups to fight for better laws to protect pregnant workers. Last year, she was invited to speak at a White House event celebrating the passage of the Pregnant Workers Fairness Act, a new workplace anti-discrimination law for which she had advocated.

But now this law, passed with wide bipartisan support, has become fodder in the bitter battle over abortion rights between Republican-led states and the federal government.

The act fills gaps in state and federal protections by requiring employers with 15 or more employees to provide “reasonable accommodations” for pregnant workers and those who have recently given birth or have related medical conditions — unless the employer can prove it would cause “undue hardship” on the business.

Accommodations can include allowing an employee to take additional bathroom breaks, carry a water bottle, or sit instead of stand while on the job. After years of lobbying by nonprofit organizations and business groups, the federal law passed in December 2022. It went into effect last June.

In its rulemaking process, the Biden administration included abortion as a “related medical condition” covered by the law. That means employees seeking abortion care can ask for accommodations from their employers, such as time off work for an appointment or recovery.

This year, 19 Republican attorneys general — including from Jackson’s home state of South Carolina — have sued the administration over that interpretation.

The AGs argue the Biden administration is forcing abortion accommodations even in states where abortions are illegal.

“Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law,” Arkansas Republican Attorney General Tim Griffin said in a statement last month announcing the lawsuit filed by Arkansas and 16 other Republican-led states.

But some advocates say the lawsuit threatens protections for all pregnant workers covered under the new law — not just the small subset who need abortion care.

“These states are cutting off their noses to spite their faces,” said Elizabeth Gedmark, an attorney and vice president of A Better Balance, a national nonprofit advocacy organization that provides legal services and has long pushed for a national Pregnant Workers Fairness Act.

“These attacks have very real consequences for peoples’ lives and for their economic security and health,” she said.

Jackson fears the lawsuit could lead to fewer workers accessing the care they need to be healthy.

“[Workers] should have the right to proper medical care during pregnancy, after childbirth, after having a miscarriage, or having an abortion,” she said. “It seems quite ridiculous to me that some employers want so much control over employees to the point that they feel like they have the right to threaten their job security because of pregnancy or anything associated with it.”

Into the fray

After Congress passed the Pregnant Workers Fairness Act, the U.S. Equal Employment Opportunity Commission, a federal agency known as the EEOC, had to hammer out a set of rules that clarify what employers can and can’t do under the law.

So last summer, the EEOC sought public comment on its proposed rules for how the new law would work. More than 100,000 comments were submitted over a two-month period.

The flood of comments stemmed from opinions about whether the EEOC should include abortion in its definition of “pregnancy, childbirth or related medical conditions” that are covered under the new law.

The vast majority were nearly identical form comments, according to the EEOC. About 54,000 of the comments urged the EEOC to exclude abortion, while about 40,000 supported its inclusion.

In a 3-2 vote, the EEOC ultimately adopted new rules that included abortion care in its definition of conditions covered under the law. The rules are set to go into effect June 18.

But in April, a week after the EEOC announced its final rules, the 17-state coalition of GOP attorneys general argued in its lawsuit that the agency’s “erroneous interpretation” of the Pregnant Workers Fairness Act creates an “abortion accommodation mandate.”

“When the law was passed by Congress, it was explicitly understood not to address abortion at all, and the text of the statute does not address abortion,” said Tennessee Attorney General Jonathan Skrmetti, who is co-leading the lawsuit with Arkansas’ Griffin.

Skrmetti and the other Republican attorneys general point to comments made by lawmakers during debate on the measure that appear to signal Congress’ intent was not to impose abortion-related requirements in states where those abortions would be illegal.

Pennsylvania Democratic U.S. Sen. Bob Casey, who sponsored the pregnant workers bill, said during debate that the EEOC “could not issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of state law.”

The 15 other states joining the lawsuit are Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

More states have jumped into the fray. In mid-May, Louisiana’s and Mississippi’s attorneys general, both Republicans, filed their own lawsuit challenging the same provision.

And in February, a federal judge in Texas blocked the EEOC from accepting complaints filed by Texas state employees under the Pregnant Workers Fairness Act. It was a win for Texas Republican Attorney General Ken Paxton, who had sued the Biden administration last year.

Protections at risk

Skrmetti, the Tennessee attorney general, believes the Pregnant Workers Fairness Act is a good law.

“It was passed with a degree of bipartisanship that you rarely see,” he told Stateline, “and it undermines the efforts of Congress and the popular will when agencies take laws and change them without the authority of the people’s representatives.”

But Gedmark, of A Better Balance, said decades of legal precedent support including abortion as a related medical condition for pregnant workers. The Pregnancy Discrimination Act, a federal law passed in 1978, prohibits sex discrimination based on pregnancy, childbirth or related medical conditions — a definition that the EEOC has long interpreted to include abortion.

Proponents of the new Pregnant Workers Fairness Act and the EEOC’s rules worry the lawsuits will sow confusion among employers and employees. There’s concern, Gedmark said, that a court could render more of the regulations invalid, beyond those that mention abortion.

Skrmetti doesn’t think the 17-state lawsuit will hurt the law’s protections for pregnant, postpartum and lactating workers.

“The optimal outcome would be for the abortion-related pieces of the rule that aren’t supported by the statute to be vacated,” he said. “But the law remains the law regardless of what the [EEOC’s] rules are.”

While states and the feds clash in court, Jackson said she’s focused on making sure as many women as possible know about their new rights.

Whenever she’s out shopping and spots a pregnant store employee, she asks how they’re doing. She asks if they know about their workplace rights, and how to ask their employers for the accommodations they need.

“Whether a mother decides to have an abortion or not, she still needs medical care after the procedure, the same as she would need medical care if she had a miscarriage or regular childbirth,” Jackson said. “I believe that employers need to know the difference between personal [ideology] and business.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity.