Navigating in the Post-Dobbs Workplace—Rough Seas Ahead

On June 24, 2022, the Supreme Court of the United States handed down its landmark decision in Dobbs v. Jackson Women’s Health Organization (2022), ruling that the United States Constitution confers no right to an abortion. While the Dobbs decision did not specifically reference labor and employment law, it raises many new challenges and questions for employers and employees alike. While the impact of the Dobbs decision is undeniably far-reaching, several key issues now rise from the depths that employers will need to consider and continue to monitor. Subtle hazards exist as to how employers may legally react to this decision. 
 

1. The Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) prohibits employment discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” In response to the Dobbs decision, the Equal Employment Opportunity Commission (EEOC) reiterated that Title VII prohibits employers from engaging in discriminatory behavior towards an employee “for having an abortion or contemplating having an abortion.” Two lower court decisions have confirmed this as the current law of the land.
 

2. The Pregnant Workers Fairness Act

On December 29, 2022, President Biden passed into law the Pregnant Workers Fairness Act (PWFA). Previously, under the Supreme Court’s interpretation of the PDA, the Court only required that employers accommodate pregnant workers insofar as they accommodated non-pregnant workers who were similar in their ability or inability to work. Thus, there was no affirmative obligation on employers to accommodate pregnancy. The PWFA closes this gap and creates that obligation. According to the EEOC, the PWFA requires employers with 15 or more employees to provide reasonable accommodations to an employee’s “known limitations related to pregnancy, childbirth or related medical conditions” absent undue hardship. The PWFA also bars employment discrimination or retaliation based on these categories. Lastly, The PWFA does not preempt any federal, state, or local laws that provide greater protection for employees affected by pregnancy, childbirth, or related medical conditions. The PWFA will go into effect on June 27, 2023.

As the PWFA’s language protects pregnancy and “related medical conditions,” and courts have already decided that abortion is a “related medical condition,” it follows that the PWFA will also require accommodations for employees seeking abortion care. Examples of accommodations will undoubtedly include time off from work to secure the abortion and time for any needed recovery or treatment for any complications that may arise. Where an employee lives in an abortion ban state post-Dobbs, the requested accommodation may well include time to travel out of state for the reproductive care.
 

3. Religious Discrimination

Title VII of the Civil Rights Act has long prohibited discrimination on the basis of both religion and gender, including pregnancy. These employee protections can sometimes be at odds with each other. The law requires employers to reasonably accommodate the religious beliefs of its employees, including if those beliefs hold that abortion stands as morally wrong. However, according to recent decisions, Title VII “does not require an employer to allow an employee to impose his religious views on others.” 

In a recent case on point, the court granted summary judgment in a religious discrimination case where the employee, who was an ultrasound technician, had objected to performing ultrasounds on women who were considering abortion. The employer accommodated his request and did not require him to perform those ultrasounds. The employee informed the employer that, in those instances where a woman came in without the parties aware of her intent to have an abortion and shared her intention with him spontaneously, that his religious beliefs required him to provide her with pastoral care and dissuade her from having an abortion. The employer contended this was not a reasonable accommodation and offered, instead, that the employee simply be permitted to stop the ultrasound. The employee refused this accommodation, and he was fired. He sued for an alleged failure to accommodate his religious beliefs. In granting summary judgment, the court agreed that employers are not required to allow employees to impose their religious beliefs on others. Thus, balancing these competing obligations offers a particularly tricky minefield for employers.
 

4. The National Labor Relations Act (NLRA)

The National Labor Relations Act (NLRA) applies to most private-sector employers and prohibits employers from taking adverse action against employees who engage in “protected concerted activity” that concerns the terms and conditions of employment. Workplace discussions or actions related to employer-provided abortion benefits could constitute concerted activity protected under the NLRA.
 

5. The Family and Medical Leave Act

Employers must maintain compliance with the Family Medical Leave Act (FMLA), which entitles eligible employees to take unpaid, job-protected leave for qualifying serious health reasons. The DOL’s FMLA guidance offers some direction, though not specifically addressing abortion, on whether abortion leave is available under the FMLA. According to the DOL, serious health conditions that qualify for FMLA leave include but are not limited to pregnancy, incapacity related to pregnancy, conditions requiring an overnight stay in a hospital or other medical care facility, or conditions that incapacitate the employee or employee’s family member (including inability to work) for more than three consecutive days and have ongoing medical treatment (which can include a single appointment and follow-up care, such as prescription medication).

Therefore, employers may be required to provide leave for abortion-related care if it involves an overnight stay in a hospital or other medical care facility or incapacitation as described above. Employers who receive FMLA leave requests for abortion-related reasons should treat them like all other FMLA leave requests, ensuring adherence to current FMLA guidelines, including certification and confidentiality.
 

6. The Americans with Disabilities Act 

The EEOC guidance on implementation of the Americans with Disabilities Act (ADA) provides that pregnancy itself fails to qualify as an impairment or disability requiring ADA leave; however, reproductive functions do constitute a major life activity. Moreover, the ADA Amendments Act of 2008 broadened the definition of disability to include temporary impairments under certain circumstances, which can include certain pregnancy complications. The EEOC guidance expressly states that “[c]ertain impairments resulting from pregnancy (e.g., gestational diabetes)” may be considered a disability if they substantially limit a major life activity or otherwise satisfy the ADA’s definition of a disability.

Thus, impairments that give rise to, and/or result from, abortion or abortion complications may very fall within this guidance. Employers should treat ADA leave requests for abortion-related reasons like all other ADA leave requests and engage in the interactive process in order to determine if an underlying complication exists that renders the employee disabled, even if temporarily, under the law.
 

7. State and Local Laws

Employee advocates and employers alike should remain vigilant of any state leave laws that may provide different or additional leave benefits and protections related to abortion services, as state laws and city ordinances often provide expanded rights to employees. For example, in the wake of Dobbs, the city of Chicago amended its Chicago Human Rights ordinance, specifically the Bodily Autonomy for All ordinance, to expressly prohibit discrimination against workers who receive reproductive healthcare. As discussed above, laws of this nature have already seen challenges by religious employers asserting they violate their constitutional rights under the First and Fourteenth Amendments.
 

Conclusion

The situation continues to evolve. Wise employers will tread carefully and make sure they stay in contact with their legal counsel to be sure that they acted in a manner consistent with this legal tsunami. 

If you have questions, please contact David J. Carr or another member of the Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.