Proposed Federal Regulation Could Force Employers to Pay for Time Off for Abortions

by Will Kessler

A new proposal from the Equal Employment Opportunity Commission (EEOC) could require paid time off for women to get abortions and may even require employers to pay for travel related to the procedure, experts told the Daily Caller News Foundation.

The EEOC proposed new guidelines in August to enforce the Pregnant Workers Fairness Act (PWFA) that was signed into law in December 2022, with the new guidelines classifying abortion as a related medical condition, according to the proposal from the EEOC. While the rule can’t require employers to pay directly for an abortion, the classification could open the door for employers to be required to give paid time off for an abortion and possibly even for employers to pay for travel expenses if the woman’s state does not permit an abortion, experts told the DCNF.

“As an employer, it requires you to take this basket of conditions related to pregnancy, like childbirth and related medical conditions, and says that you cannot discipline, fire or refuse to hire a woman who is pregnant, has just given birth or has a medical condition arising from that,” Reed Rubinstein, senior counselor and director of oversight and investigations at the America First Legal Foundation, told the DCNF. “What this does is make it a little bit clearer what accommodations are required.”

By classifying abortion as a related medical condition, it puts the procedure in the same category as conditions like lactation, the use of birth control, menstruation, miscarriage and stillbirth, according to the proposal.

“Quite possibly, this regulation could be read as requiring paid time off to travel (at one’s own expense) to obtain an abortion,” Dan Morenoff, the executive director of the American Civil Rights Project, told the DCNF. “It would be read to forbid firing an employee who does so.”

Morenoff said that, although the EEOC did not explicitly state that employers would be required to pay for abortion-related travel expenses, he noted that “they may try to get there later, less directly.”

“Under the PWFA, a worker can seek an accommodation for ‘pregnancy, childbirth, or related medical conditions,’” the EEOC said in a statement to the DCNF. “Since 1979, through both Republican and Democratic administrations, the Commission has consistently interpreted the term “pregnancy, childbirth, or related medical conditions” in Title VII to include the decision to have or not to have an abortion.”

The PWFA, from which the proposal draws its guidance and authority, asserts that it “shall not be construed” that the law requires an employer-sponsored health plan to pay for or cover a particular item, procedure or treatment, according to the law.

“I’m sure that many activists will file comments challenging the proposed rule as overstepping the bounds set by Congress in compelling employers to directly do what Congress expressly rejected their obligation to even indirectly do,” Morenoff told the DCNF. “If the EEOC goes forward with making the rule final (especially if, in responding to those comments it clarifies that this is exactly what it’s done), I’m sure that decision will be challenged in the courts.”

The EEOC recently welcomed a new commissioner, Kalpana Kotagal, breaking the 2-2 tie between Republicans and Democrats that had prevented any radical policy changes. Kotagal is mostly known for her invention of the “inclusion rider,” which many actors in Hollywood use to force a level of diversity for productions on condition of employment.

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Will Kessler is a reporter at Daily Caller News Foundation.