Today, the EEOC's regulations interpreting the Pregnant Workers Fairness Act go into effect. Thanks to two very recent federal court opinions from two different federal courts, however, it remains an open issue as to whether the EEOC can enforce those parts of its regulations that require employers to reasonably accommodate employees' elective abortions not necessary to treat a medical condition related to pregnancy.
Last Friday, an Arkansas federal court denied the injunction request of 18 different states to block the abortion accommodation provisions of the regulations.
Then, mere hours before the regulations were to take effect, a Louisiana federal court granted a similar request made in a different case by Louisiana, Mississippi, and four entities affiliated with the Roman Catholic church.
So, what happens now? As of today, the regulations are in effect. For employers located in Louisiana and Mississippi, employees whose primary duties are located in Louisiana or Mississippi, and for the four Roman Catholic plaintiffs, it means that the effective date of the requirement that employers provide an unpaid leave of absence for an employee to have or recover from an elective abortion is delayed. (Those employers remain free to offer that accommodation if they so choose; the EEOC just cannot force them to do so.) For every other employer with 15 or more employees in the other 48 states plus the District of Columbia, you must accommodate an employee who has an abortion.
It also means, however, that this issue is almost certainly headed to the Supreme Court after a court-of-appeals pit stop. With a majority of SCOTUS's well documented beliefs on abortion and agency over-reach, I would not hold your breath hoping that the abortion provisions of the PWFA ultimately survive. Indeed, given this Court's hostility to any agency regulations, let's just hope that these regulations survive at all.
Last Friday, an Arkansas federal court denied the injunction request of 18 different states to block the abortion accommodation provisions of the regulations.
Then, mere hours before the regulations were to take effect, a Louisiana federal court granted a similar request made in a different case by Louisiana, Mississippi, and four entities affiliated with the Roman Catholic church.
So, what happens now? As of today, the regulations are in effect. For employers located in Louisiana and Mississippi, employees whose primary duties are located in Louisiana or Mississippi, and for the four Roman Catholic plaintiffs, it means that the effective date of the requirement that employers provide an unpaid leave of absence for an employee to have or recover from an elective abortion is delayed. (Those employers remain free to offer that accommodation if they so choose; the EEOC just cannot force them to do so.) For every other employer with 15 or more employees in the other 48 states plus the District of Columbia, you must accommodate an employee who has an abortion.
It also means, however, that this issue is almost certainly headed to the Supreme Court after a court-of-appeals pit stop. With a majority of SCOTUS's well documented beliefs on abortion and agency over-reach, I would not hold your breath hoping that the abortion provisions of the PWFA ultimately survive. Indeed, given this Court's hostility to any agency regulations, let's just hope that these regulations survive at all.