New England Biz Law Update
A group of Democratic senators has urged the U.S. Equal Employment Opportunity Commission to retain language in its Pregnant Workers Fairness Act regulations expressly referencing in vitro fertilization and other fertility treatments, warning that removing the language could create confusion for employers and employees alike.
The dispute stems from comments by EEOC Chair Andrea Lucas indicating that the agency may reconsider portions of the PWFA’s 2024 final rule that expressly identify fertility treatments, including IVF, as covered “related medical conditions.”
The senators argued in an open letter that removing those references would not eliminate statutory protections but could make employers more likely to deny accommodation requests from employees undergoing fertility treatment.
The letter emphasized that IVF treatment often involves intensive medical schedules, including daily medication regimens, monitoring appointments, egg retrieval procedures and recovery periods that may require temporary workplace accommodations.
Current rule expressly references fertility treatment
The Pregnant Workers Fairness Act, enacted in 2022, requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth or related medical conditions absent undue hardship. The EEOC’s 2024 final rule specifically included IVF and fertility treatments among examples of covered conditions.
The senators contend that removing those references could create uncertainty regarding whether accommodations tied to fertility treatment remain protected under the statute, even if the underlying law itself does not change.
The issue also intersects with broader political debate surrounding IVF access and fertility-related policy initiatives.
Potential implications
For employers, the dispute highlights continuing uncertainty surrounding implementation of the PWFA and the evolving scope of accommodation obligations under the law.
Even if the EEOC ultimately revises the rule, employers may still face requests for accommodations related to fertility treatments under the PWFA’s statutory language.
As a result, employers should be cautious about assuming that removal of specific IVF references would eliminate accommodation obligations in this area.
Review of accommodation policies
Employers should review how pregnancy-related accommodation policies address fertility treatment and related medical procedures.
Companies should ensure that managers understand how accommodation requests involving IVF or fertility treatment are evaluated and documented, particularly given the possibility of further EEOC rulemaking or litigation over the scope of the PWFA.
