Congrats to Us! Women Are Officially Entitled to (Unpaid) Time Off for Childbirth, Abortions

At the end of 2022, Congress passed the Pregnant Workers Fairness Act, a bill to allow pregnant workers to take bathroom breaks without retaliation, among other common-sense protections. After significant pushback from Senate Republicans who were determined to paint the bill as a poison pill to push “abortion on demand” (if only!), the law took effect last summer. And on Monday, the Equal Employment Opportunity Commission (EEOC) issued a list of final regulations to detail how the law will work in practice—including a first-of-its-kind requirement that employers offer unpaid time off for people after childbirth, or to access abortion care.

Employers won’t have to pay for someone’s abortion or travel, and the regulation still offers exceptions for religious employers. But for the first time, employers will be required to make a good-faith effort to provide time off for someone to seek abortion care.

“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,” the regulation explicitly states.

Specifically, the EEOC requires employers with more than 15 employees to provide time off if a worker needs to travel out-of-state to seek abortion care or time to recover after having an abortion—and according to the 19th, EEOC chair Charlotte Burrows specified to reporters on Monday that this requirement applies even in states where abortion bans may be in effect. 

The Pregnant Workers Fairness Act was first conceived when one advocacy organization, A Better Balance: The Work & Family Legal Center, reported receiving calls from numerous pregnant workers who said they were fired or professionally punished for asking for even minor accommodations…like a chair. Before PWFA, most workers experiencing pregnancy-related medical conditions had virtually no protections or rights in the workplace. The Family and Medical Leave Act (FMLA), for example, grants 12 weeks of unpaid time off after childbirth—but it only applies to employers with at least 50 employees. Further, nearly half of all U.S. workers can’t access unpaid time off under FMLA because they haven’t been at their jobs for long enough, and consequently, one in four mothers return to work within two weeks of giving birth. 

Nonetheless, PWFA has been (needlessly!) controversial, probably because of its timing—it emerged shortly after the Supreme Court overturned Roe v. Wade and a wave of abortion bans took effect. It’s probably also because Republican lawmakers just seem to abhor pregnant people. As the EEOC noted last year, the law offers an “expansive definition” for pregnancy-related medical conditions, which rightly includes contraception, menstruation, lactation, fertility treatments, pregnancy loss, and “having or choosing not to have an abortion.” That last part sparked a frenzied response from Republicans in 2022, as they argued PWFA was a backdoor to create government-funded, free abortion for all. Then in August, Sen. Bill Cassidy (R-La.)—who incidentally partnered with Senate Democrats to pass the bill—came out against proposed EEOC rules regarding PWFA, which recognized the decision to have abortion care as a pregnancy-related condition.

Cassidy joined Sens. Thom Tillis (R-NC) and Rand Paul (R-Ky.), who rejected EEOC’s approach to enforcing the law, arguing in 2022 that it “could force religious employers to provide accommodations that arise from an abortion, which could violate the free exercise of their religious beliefs.” Cassidy specifically accused the EEOC of “going rogue” for its very moderate inclusion of abortion as a protected pregnancy-related medical condition: “The decision to disregard the legislative process to inject a political abortion agenda is illegal and deeply concerning,” he said.

As of Monday’s developments, Cassidy called the regulations “shocking and illegal.” The conservative Alliance Defending Freedom said Biden’s EEOC is trying to “smuggle an abortion mandate” into the law. Again, the EEOC noted as early as last summer that nothing in PWFA actually “requires or forbids an employer to pay for health insurance benefits for an abortion.” I repeat: If only! 

But typical Republican, anti-abortion fearmongering aside, the EEOC’s new rules are set to take effect on June 18. According to the 19th, the rules were supposed to be published earlier this year but were delayed because the EEOC had to review over 100,000 public comments, including over 96,000 comments that mentioned abortion.

In a statement responding on Monday, A Better Balance thanked the EEOC “for issuing robust final regulations that appropriately recognize the broad scope of the Pregnant Workers Fairness Act.” The ACLU similarly praised the agency for “recognizing that abortion has for decades been approved under the law as a ‘related medical condition’ to pregnancy that entitles workers to reasonable accommodations, including time off to obtain abortion care.”