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On October 7, 2025, the Senate confirmed President Trump's nomination of Brittany Panuccio as the third Equal Employment Opportunity Commission (EEOC) Commissioner giving the EEOC the quorum needed to make significant policy changes such as amending or adopting new regulations and guidance.
The EEOC has been patiently waiting until the third EEOC Commissioner was confirmed before issuing changes to the Pregnant Workers Fairness Act (PWFA) Final Regulations (Final Rule). Of course, no one knows what will be included in the revised regulations. However, among other changes, we predict the EEOC will quickly take action that results in the removal of the following conditions from the litany of potential conditions that may require accommodation, absent undue hardship: menstruation, infertility, abortion and menopause. Here's why.
EEOC Acting Chair Andrea Lucas has been vocal about her support for the PWFA. However, she has indicated that she does not agree with the EEOC's interpretation in the Final Rule of the phrase "pregnancy, childbirth, or related medical conditions" and what the EEOC under Acting Chair Lucas' leadership describes as "the contrivances the Commission used to arrive at its construction of the statute." Shortly after her appointment as Acting Chair, the EEOC published a statement making it clear that "Once a quorum is re-established at the Commission, Acting Chair Lucas intends for the Commission to reconsider portions of the Final Rule that she believes are unsupported by law."
When the EEOC voted on the final regulations in April 2024, Lucas issued a public statement explaining that she believes the EEOC's Final Rule goes too far.
I support elements of the final rule. However, I am unable to approve it because it purports to broaden the scope of the statute in ways that, in my view, cannot reasonably be reconciled with the text. At a high level, the rule fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction. The Commission extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system. And the results are paradoxical. Worse, the Commission chose not to structure the final rule in a manner that realistically allows for severability of its objectionable provisions from its reasonable and rational components.
According to Lucas, "menstruation, infertility, menopause, and the like are not caused or exacerbated by a particular pregnancy or childbirth – but rather the functioning, or ill-functioning, of the female worker's underlying reproductive system." Therefore, they are not subject to accommodation under the PWFA.
In addition to the Acting Chair's stated position, a federal court in the Western District of Louisiana issued an order May 21, 2025, vacating the portion of the EEOC's Final Rule interpreting the PWFA as requiring employers to accommodate what the court refers to as "elective abortions." The court ordered the EEOC to revise the PWFA Final Rule. At the time, Acting Chair Lucas could not do so because the EEOC did not have a quorum necessary to take such action.
Now that the EEOC has a quorum with Acting Chair Lucas and Commissioner Kalpana Kotagal joined by Brittany Panuccio, the agency is well-position to take action consistent with the court order and Acting Chair Lucas' stated intentions.
Unless and until the EEOC revises the Final Rule, it remains in effect except for the portion of the Final Rule that requires accommodation of purely elective abortions. That means employers should continue to comply with the Final Rule but be on the lookout for a revised Final Rule to be issued. When the Final Rule is revised, employers may need to review their policies and practices related to the PWFA to ensure that they are updated to align with the revised regulations. Jackson Lewis lawyers are continuing to monitor these developments. If you have questions about what this means in your workplace, please reach out to a Jackson Lewis lawyer.
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