Pollart Miller wants to remind our great clients that their employee handbooks and policies may be due for a refresh. We will be presenting a series of summaries on newer federal and state laws that may affect your workforce. Reach out to our employment law team for advices, updates, and all things employment.
The Pregnant Workers Fairness Act was passed in 2023 and had full effect last summer when the Equal Employment Opportunity Commission (EEOC) passed its final rule concerning the implementation of the Act on June 18, 2024. The EEOC has continued to publish comments and rules about the enforcement of the law.[1] These subsequent official comments do not necessarily have the force of law, but they are helpful guidance for employers because they provide insight on how the EEOC interprets the law and intends to enforce it moving forward.
The PWFA requires covered employers to provide reasonable accommodations to a qualified employee’s or job applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The law applies to private employers with fifteen or more employees, as well as federal agencies, employment agencies and labor organizations.[2]
The PWFA allows two paths to be a qualified employee[3]:
So, if a worker becomes unable to perform an essential function of their job on a temporary basis, due to a condition related to pregnancy, then that worker can request a temporary change in duties as a reasonable accommodation pursuant to the PWFA. If the employee is pregnant, it is assumed under the PWFA that the employee could perform the essential function(s) “in the near future” because they could perform the essential functions within generally 40 weeks of the temporary suspension of the essential function[4].
A “reasonable accommodation” is an adjustment to normal working conditions to meet the needs of a qualified worker or applicant.[5] Under the PWFA, a covered employer cannot refuse to make a reasonable accommodation unless doing so would constitute an undue hardship, i.e., a significant and unjustifiable expense or difficulty for the employer.
Per the EEOC, some examples of reasonable accommodations might include, but are not limited to[6]:
A “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.[7] A “known limitation” can be a circumstance that does not meet the definition of a disability under the ADA. In other words, the burden of proof is less to establish a “known limitation.” This may tend to mean that the PWFA is more expansive and worker-friendly than other applicable federal laws such as the ADA, Title VII, etc.
”Known” means that the limitation has been communicated to the employer by the employee or the employee’s representative.[8] Workers are expected to communicate directly with employers about what changes to the work environment are needed; they must be able to identify the limitation and articulate what adjustment or change is needed to accommodate that limitation.
In the June 2024, official comments from the Federal Register, EEOC counsel states that: “the PWFA was intended to cover all types of limitations, including those that are minor and those that are needed to maintain the employee's health or the health of the pregnancy.”[9] As with any new federal law, it may take years before we see court decisions about all parts of the PWFA. However, this statement by the EEOC about covering “all types of limitations” seems to indicate that enforcement actions will not require extensive analysis of the severity of alleged known limitation. Also, pregnancy does not have to be the sole cause of the limitation for which an accommodation is being sought. It appears that the EEOC recognizes that pregnancy can be an additional complication for other preexisting conditions.
Overall, the PWFA is meant to make it easier to prove and claim the need for reasonable accommodation when it is sought for a condition related to pregnancy. However, the PWFA is narrower in scope than other disability laws such as the Americans with Disabilities Act because it only talks about accommodations in the workplace. The PWFA does not discuss discrimination against pregnant workers and/or job applicants. Discrimination claims are addressed in Title VII – also enforced by the EEOC.
In the December 2024 comments, the EEOC clarified that employers can ask for documentation from medical professionals to support the request for accommodations[10].
The law is very new, and not much litigation has commenced yet. However, the PWFA is not without controversy because the EEOC includes abortion within the definition of “pregnancy, childbirth, or related medical conditions.”[11] The Federal Register comments indicated that typically the “reasonable accommodation” that must be provided in that context is unpaid leave to attend a medical appointment or for recovery post-procedure. The intent of the PWFA is to “prohibit discrimination against employees for obtaining abortion care.”[12] Employers do not have to pay for abortions but cannot discriminate against employees for having them.[13]
In a 2025 lawsuit, a Catholic diocese organization in North Dakota successfully sued under the State’s Religious Freedom Restoration Act and obtained injunctive relief against the EEOC, permanently stopping the EEOC from enforcing certain portions of the PWFA against them (related to abortion, IVF, and infertility).[14] Note that the ruling is narrow and does not impact the enforceability of these items contained in the PWFA against any other parties.
There are also rumblings of new federal legislation which may change the language and enforcement of the PWFA[15].
With the passage and enforcement of the Pregnant Workers Fairness Act, there is another avenue under federal law for a worker to request and obtain reasonable accommodation for certain conditions that are related to pregnancy. This is not the only way for such accommodation to be obtained. The PWFA can be enforced alongside other preexisting federal laws. For example, it is also possible for a worker to have a claim under the ADA related to a medical condition arising out of pregnancy (but pregnancy itself is not considered a disability under the ADA). Also, workers may have access to job-protected leave under the FMLA (or a State law such as FAMLI in Colorado) for conditions related to pregnancy or childbirth.
Consider the changing landscape of employment law when you receive a request for accommodations from a worker. Remember that the PWFA requires employers to reasonably accommodate known limitations. Do not be afraid of a conversation with your employee about how to best accommodate their needs in a way that makes sense for your business.
If you want to learn more about recent updates to federal and state employment law, or if it is time for a thorough review of your company documents and policies, please contact our employment law team today.
Want to know more? Contact Jonny Campbell at jcampbell@pollartmiller.com.
[1] https://www.eeoc.gov/laws/guidance/helping-patients-deal-pregnancy-and-childbirth-related-limitations-and-restrictions
[2] https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act
[8] Id.
[9] https://www.federalregister.gov/documents/2024/04/19/2024-07527/implementation-of-the-pregnant-workers-fairness-act
[10] https://www.eeoc.gov/laws/guidance/helping-patients-deal-pregnancy-and-childbirth-related-limitations-and-restrictions
[11] https://www.federalregister.gov/documents/2024/04/19/2024-07527/implementation-of-the-pregnant-workers-fairness-act
[12] Id.
[13] See id.
[14] https://natlawreview.com/article/eeoc-permanently-enjoined-enforcing-portions-pwfa-final-regulations-and-eeocs-title
[15] https://www.hrdive.com/news/PWFA-abortion-bill/744780/; see also https://www.congress.gov/bill/118th-congress/house-bill/6637/text#:~:text=Introduced%20in%20House%20(12%2F06%2F2023)&text=To%20prohibit%20regulations%20implementing%20the,abortion%20or%20abortion%2Drelated%20services.
