Pregnancy accommodation: Where things stand now

The Pregnant Workers Fairness Act took effect in June 2023, and the following year, the Biden-era EEOC issued regulations that were relatively burdensome for employers. Since that time, President Trump was elected, and he fired two Democratic members of the agency, depriving the agency of a quorum.

Meanwhile, a number of states filed suit seeking to enjoin application of the PWFA regulations, and now the EEOC has a quorum again, with a Republican majority.

Employers could be forgiven for being confused about what this means for their pregnancy accommodation obligations. The obligation still exists, of course, but its scope may be narrowing.

PWFA and the Biden-era regulations

The PWFA requires employers with 15 or more employees to provide reasonable accommodations to the known limitations of a qualified employee or applicant if those limitations are related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The Equal Employment Opportunity Commission issued regulations and interpretive guidance in 2024. The regulations are notable for their broad interpretation of "related medical conditions," which include menstruation, infertility, fertility treatments, menopause, and, most controversially, abortion (including time off for, or recovery from, an abortion).

The Trump era

Since President Trump took office in January, things have changed at the EEOC. One of his first actions in office was to fire two Democratic Commissioners: Then-Chair Charlotte Burrows, and Jocelyn Samuels. Because the five-member commission had one vacancy already, that left Republican Andrea Lucas as Acting Chair and Democrat Kalpana Kotagal, and no quorum. But as of last month, Republican Brittany Bull Pannucio has been confirmed, so the EEOC has its quorum back, now with a Republican majority. (And President Trump has since appointed Ms. Lucas as Chair.)

Although she appears to be generally in favor of pregnancy accommodation, Chair Lucas has been an outspoken opponent of the PWFA Final Rule since its issuance. When the regulations were issued, she said that she could not vote to approve the rule because, in her view, it "fundamentally err[s] in conflating pregnancy and childbirth accommodation with accommodation of the female sex." She argued that the list of conditions covered by the Final Rule are related to female biology generally and not to a specific pregnancy or childbirth. Most notably, she took issue with the rule's requirement that employers accommodate employees obtaining elective abortions.

Since becoming Acting Chair, she has indicated that she intends to “reconsider portions of the Final Rule that she believes are unsupported by law.”

Meanwhile, in the courts . . .

While the EEOC was undergoing its transition, plaintiffs were filing lawsuits challenging the PWFA regulations. The plaintiffs were primarily states and religious organizations, and the primary objection to the regulations was the requirement to accommodate elective abortions.

On February 20, the U.S. Court of Appeals for the Eighth Circuit issued a significant decision in Tennessee v. Equal Employment Opportunity Commission. The lawsuit, brought by 17 Republican state attorneys general, alleged that the Final Rule improperly expanded the meaning to include abortion-related accommodations, thereby imposing new obligations on them as employers (and allegedly conflicting with their state policies). The suit was dismissed by a federal judge in Arkansas who ruled that the plaintiffs did not have standing to sue, and the plaintiffs appealed.

On appeal, the Eighth Circuit reversed, holding that the plaintiff states did have standing. The court reasoned that the states, as covered employers, suffered an "injury-in-fact" simply by having to immediately take action to update employment policies and train staff to conform with the new rule's requirements. Thus, the Eighth Circuit sent the case back to the district court for further proceedings.

Although the Eighth Circuit decision was not a ruling on the merits (or lack thereof) of the Final Rule, it did clear the path for the challenge to proceed. Thus, even without action by the EEOC, it is possible that the Final Rule will ultimately be struck down by the courts.

What now?

If the EEOC revokes the Final Rule and replaces it with something more moderate, then the Eighth Circuit case will become moot. Here are some thoughts for employers to keep in mind:

• The court challenge to the Final Rule remains live.
• Employer obligations to accommodate pregnancy and many related conditions will continue. Although the current EEOC appears likely to rescind the Final Rule, Chair Lucas appears to be in agreement with the concept of pregnancy accommodation. Thus, we would expect the Final Rule to be replaced with a more moderate version that will still impose significant obligations on employers.
• We could see a change in enforcement philosophy from the EEOC. In the unlikely event that the EEOC does not rescind the Final Rule entirely and replace it, employers can expect to see a shift in the agency’s enforcement philosophy. The EEOC may prioritize other areas – such as religious rights and "reverse" discrimination – and be less aggressive in pursuing PWFA claims based on the more expansive provisions in the Final Rule. This would be similar to what we have seen from the current EEOC in response to charges alleging discrimination based on sexual orientation and gender identity.

Pregnancy accommodation tips for employers, now and later

Although pregnancy accommodation is up in the air in many respects, there are certain actions employers should take now and in the future.

            Reasonable accommodation generally (disabilities, pregnancy, religion)

• Review your current policies to ensure that pregnancy accommodation is adequately covered. This could be as simple (and flexible) as adding a one-paragraph “reasonable accommodation” policy that says the company will accommodate disabilities, pregnancy and related conditions (including lactation), and religion, in addition to any accommodations required by applicable state law, and directing employees to the person or office who handles accommodation requests.
• Ensure that you are engaging in the “interactive process” if you may not be able to grant the specific accommodation requested by the employee. This concept, developed in response to the Americans with Disabilities Act, is a one-on-one “brainstorming” session to discuss accommodation alternatives and – it is hoped – reach agreement on an accommodation that works for the employee and the employer.
• Thoroughly document all actions taken in response to reasonable accommodation requests.
• Placing the employee on a leave of absence as an accommodation should be a second-to-last resort (with termination being the last resort) unless the employee is the one asking to go out on leave. This applies even to leave covered by the Family and Medical Leave Act.
• Don’t forget that your accommodation obligations apply to job applicants as well as current employees.

            Pregnancy accommodation

• No “magic words” required. Recognize and respond to accommodation requests related to pregnancy, childbirth or related medical conditions (even when the request doesn’t reference the “PWFA” or use the term “reasonable accommodation”).
• Require documentation from the applicant or employee only when necessary. The Final Rule sets a low documentation standard. For example, if an employee who is eight months pregnant requests an accommodation, you are not allowed to ask for a doctor’s note confirming that she is pregnant because at eight months, the pregnancy should be obvious.
• Provide training to Human Resources and to management. Because the PWFA is relatively new, employers should ensure that HR and management are well trained regarding their obligations.