Lawsuit against abortion accommodations in the workplace can proceed

U.S. Court News

Lawsuit against abortion accommodations in the workplace can proceed

A lawsuit filed by 17 states challenging federal rules entitling workers to time off and other accommodations for abortions may proceed, a federal appeals court ruled.

The Eighth Circuit Court’s decision on Thursday reverses Eastern District of Arkansas U.S. District Judge D.P. Marshall, Jr.'s dismissal of the case in June after he found that the states lacked standing to sue. Eighth Circuit Chief Judge Steven M. Colloton, who was appointed by former President George W. Bush in 2003, wrote in Thursday’s opinion that the states do have standing since they are subject to the federal rules.

Led by Republican state attorneys general in Tennessee and Arkansas, the 17 states sued the Equal Employment Opportunity Commission in April challenging its rules on how to implement the Pregnant Workers Fairness Act, a 2022 bipartisan law requiring employers to make “reasonable accommodations” for pregnant or postpartum employees.

In addition to more routine pregnancy workplace accommodations like time off for prenatal appointments, more bathroom breaks, or permission to carry snacks, the rules say that workers can ask for time off to obtain an abortion and recover from the procedure.

“The Biden-era EEOC’s attempt to turn a good law into an ideological weapon to force broad elective abortion accommodations is illegal,” Tennessee Attorney General Jonathan Skrmetti said in an emailed statement. “The EEOC’s unlawful regulations undermine the constitutional authority of the people’s elected representatives and we are vindicated by the Court’s decision to let our suit proceed.”

The lawsuit — joined by state attorneys in Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia — is one of several legal challenges to the Pregnant Workers Fairness Act rules. One case in Texas seeks to overturn the law in its entirety.

The Eighth Circuit Court’s decision to revive the case comes after a 2022 U.S. Supreme Court ruling opened the door to state abortion bans, and as bills to track and charge women who get abortions with murder have gotten attention in Missouri, North Dakota and Oklahoma state legislatures this month.

The EEOC, which enforces U.S. anti-discrimination laws, during former President Joe Biden’s administration published regulations that provide guidance for employers and workers on how to implement the Pregnant Workers Fairness Act. In them, the agency said that workers can ask for time off to obtain an abortion and recover from the procedure, along with pregnancy-related medical conditions like miscarriage, stillbirth and lactation. Citing numerous court rulings, the EEOC in its regulations said it was conforming to decades of legal precedent establishing that pregnancy-related discrimination laws include abortion.

But many Republican lawmakers, including Louisiana Sen. Bill Cassidy, who co-sponsored the bill, were furious when the EEOC stated that the law covered abortions. Both Republican EEOC commissioners voted against the rules at the time. A spokesperson for the EEOC said the agency will “refrain from discussing litigation” but referred The Associated Press to Acting Chair Andrea Lucas’ position on the Commission’s PWFA regulations, which she voted against.

“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,” she wrote in a statement at the time explaining her decision to vote against the rules.

The EEOC has undergone significant change since President Donald Trump took office last month. After naming Lucas, a Republican, as acting chair, Trump fired two Democratic commissioners of the five-member bipartisan EEOC before their terms expired in an unprecedented move. Had the commissioners been allowed to carry out their terms, the EEOC would have had a Democratic majority well into Trump’s term. The administration also dismissed Karla Gilbride as the EEOC’s general counsel, replacing her with Andrew Rogers as acting counsel.

Without a quorum, the EEOC cannot rescind its own rules, although Lucas in the statement said she intends for the EEOC to reconsider portions of the rules she believes are unsupported by law once a quorum is re-established.

The Department of Justice represents the EEOC in court, and under Trump, it remains to be seen whether it will continue to fight the states’ lawsuit.

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Workers’ Compensation Subrogation of Administrative Fees and Costs

When a worker covered by workers’ compensation makes a claim against a third party, the workers’ compensation insurance retains the right to subrogate against any recovery from that third party for all benefits paid to or on behalf of a claimant injured at work. When subrogating for more than basic medical and indemnity benefits, the Texas workers’ compensation subrogation statute provides that “the net amount recovered by a claimant in a third‑party action shall be used to reimburse the carrier for benefits, including medical benefits that have been paid for the compensable injury.” TX Labor Code § 417.002.

In fact, all 50 states provide for similar subrogation. However, none of them precisely outlines which payments or costs paid by a compensation carrier constitute “compensation” and can be recovered. The result is industry-wide confusion and an ongoing debate and argument with claimants’ attorneys over what can and can’t be included in a carrier’s lien for recovery purposes.

In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and other similar fees. They also incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Workers’ compensation carriers typically assert, of course, that, they are entitled to reimbursement for such expenditures when it recovers its workers’ compensation lien. Injured workers and their attorneys disagree.