The Reasonable Pregnant Worker
Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to “reasonable accommodations” for their pregnancy, childbirth, and related medical conditions—so long as they do not impose an “undue hardship” on their employer. The PWFA dictates that the law’s key terms, “reasonable accommodation” and “undue hardship,” should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the law’s statutory and regulatory text and is in tension with the EEOC’s new PWFA rule. These sources have produced a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants.
This Article is the first to address how the chaotic ADA doctrine will impact the PWFA’s implementation and consider how ADA caselaw should be read in concert with the PWFA rule. The Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA’s statutory and regulatory text. The Article applies this framework to three accommodations likely to arise under the PWFA: temporary transfers, remote work, and leave. Finally, this Article demonstrates why the PWFA will often require employers to accommodate such requests, notwithstanding conflicting ADA caselaw.
Table of Contents Show
Introduction
Three quarters of working women in the United States will become pregnant at some point while employed.[1] Most mothers today are primary, sole, or co-breadwinners for their families, and women work later into their pregnancies than in prior generations.[2] While working during pregnancy is generally safe, the body undergoes physical and hormonal transformations that can require changes to typical workplace practices.[3] Healthcare providers often recommend that pregnant women avoid heavy lifting, exposure to certain chemicals, and prolonged periods of sitting or standing.[4] Pregnant workers may need more frequent breaks to eat, drink, or use the restroom; they may need extra time off to attend prenatal appointments and recover from childbirth.[5] However, employers routinely refuse to grant these accommodations, forcing pregnant workers to either leave their job—jeopardizing their financial security and health insurance—or remain at work and face increased risk of complications such as fainting, miscarriage, and preterm birth.[6]
In response to this pervasive issue, Congress passed the Pregnant Workers Fairness Act (PWFA) on December 27, 2022, which went into effect on June 27, 2023.[7] The PWFA entitles covered workers to “reasonable accommodations” related to “pregnancy, childbirth, or related medical conditions” unless doing so would impose an “undue hardship” on their employer.[8] After a decade of advocacy for stronger protections for pregnant people in the workplace, the PWFA now requires employers across the country to provide pregnant workers with a stool to sit on, extra bathroom breaks, and leave for prenatal appointments.[9] Advocates and legislators hailed the PWFA as landmark civil rights legislation that fills the gaps left by traditional antidiscrimination law to adequately protect pregnant and postpartum workers.[10]
In both its structure and substance, the PWFA closely follows the Americans with Disabilities Act (ADA), which prohibits employment discrimination against individuals with disabilities and requires that employers provide reasonable accommodations to such individuals absent undue hardship.[11] Disability rights advocates celebrated the ADA’s passage in 1990 as a major win in the fight for disabled individuals to equitably access the workplace and public life.[12] However, scholars and advocates widely acknowledge that the ADA has failed to live up to its revolutionary potential to transform the American workplace into one that is genuinely inclusive of people with disabilities.[13] From the start, employers and courts found ways to cabin the rights provided by the ADA. Most ADA claimants lost on summary judgment before even reaching the question of whether they were entitled to an accommodation because courts found they did not qualify for coverage.[14] Pregnancy did not qualify as a disability under the ADA, so pregnancy-related claims were routinely dismissed.[15] Courts’ narrow interpretations of the ADA were ostensibly broadened by Congress passing the ADA Amendments Act (ADAAA) in 2008. But that statute did not address the meaning of a reasonable accommodation or extend the law to cover routine pregnancy-related needs.[16]
Modeling the PWFA on a statute whose reach has been severely curtailed by courts raises a question: How broad of an impact can we expect from the new law?[17] The PWFA aims to correct some of the constraints courts have read into the ADA, such as by explicitly covering typical pregnancy-related needs and expanding the definition of who can qualify.[18] However, the new law imports its core provision from the ADA: the meaning of the terms “reasonable accommodation” and “undue hardship.”[19] According to the PWFA, these terms have “the meanings given [to] such terms in section 101 of the Americans with Disabilities Act of 1990” and “shall be construed as such terms are construed under such Act and as set forth in the regulations required by this chapter.”[20] Thus, workers, employers, and judges must look to multiple sources to determine what these terms mean under the PWFA: the ADA’s statutory text, how the ADA terms have been “construed” by regulators and courts, and how these terms have been “set forth” in newly issued PWFA regulations.[21]
But what if these sources conflict? The ADA provides examples of potential reasonable accommodations but does not define the term itself, and courts have struggled for decades to give meaning and contours to the phrase.[22] Courts, regulators, and scholars disagree on what factors are relevant to an accommodation’s reasonableness, who bears the burden of proving that an accommodation is reasonable, and whether reasonableness is a proper subject for judicial analysis at all.[23] Even though the Equal Employment Opportunity Commission (EEOC) issued regulations defining the term under the ADA, courts have frequently departed from the agency’s position to craft their own frameworks to redefine the concept. These departures have led disability law scholars to lament that what makes an accommodation reasonable remains “hotly contested” and “in a state of chaos.”[24] The resulting ambiguity and interpretative contradictions have created a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants, particularly as ADA caselaw addressing pregnancy accommodations is scant.[25] The Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo further complicates this question as courts and scholars struggle to discern the new standard for judicial review of agency actions.[26]
While some scholarship has critiqued the contradictory field of reasonable accommodation law under the ADA,[27] this Article is the first to address how this chaotic doctrine will impact the PWFA’s implementation. It is also the first to consider how ADA caselaw should be read in light of the EEOC’s new PWFA rule and offer guidance to litigants and courts on how to harmonize these conflicting sources.
This Article focuses on several strands of ADA doctrine likely to complicate PWFA claims: caselaw addressing reassignment to a vacant position, remote work, and leave from work.[28] It will apply the ADA doctrine to the PWFA to explore how these three accommodations will fare under the new law. The Article will argue that the PWFA rule is entitled to some deference under Loper Bright because Congress delegated specific authority to the agency to interpret the phrase “reasonable accommodation.” This Article will then offer guidelines to litigants and courts on how to adapt ADA precedent to account for the PWFA rule. Finally, the Article will demonstrate how these guidelines will often require employers to accommodate requests for temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw.
Clear guidelines on what “reasonable accommodation” and “undue hardship” mean are critical to the PWFA’s successful implementation. Because the PWFA narrowed some of the loopholes employers relied on to defeat ADA claims, litigation under the new law is more likely to focus on disputing the accommodation right itself: what is reasonable and what poses an undue hardship.[29] Confusion over these concepts may harm workers raising PWFA claims by leaving the door open for judges to import their own biases of what is “reasonable” for pregnant and postpartum people to need in the workplace.[30] Finally, the PWFA’s effective implementation is critical after the Supreme Court dismantled constitutional protections for abortion in Dobbs v. Jackson Women’s Health Organization.[31] Early findings indicate that in states with strict abortion bans, more women are carrying pregnancies—including unplanned and medically risky pregnancies—to term.[32] These women may be especially likely to require accommodations at work.
This Article will proceed in three parts. Part I will discuss the meaning of “reasonable accommodation” under the ADA through statutory text, regulations, legislative history, and caselaw. This Part will discuss conflicting ADA doctrine concerning the accommodations of reassignment to a vacant position, remote work, and leave from work—accommodations likely to be sought by pregnant and postpartum workers. Part II will examine the PWFA’s definition of “reasonable accommodation” and discuss how the statute and regulations address these three accommodations differently than ADA caselaw. This Part will also argue that Loper Bright compels a degree of judicial deference to the PWFA regulations. Finally, Part III will offer a framework for courts evaluating reasonable accommodation claims under the PWFA. Part III will then apply this framework to the three accommodations discussed in Parts I and II to demonstrate how courts can adapt the ADA doctrine to the PWFA.
I. Reasonable Accommodation Under the ADA
The PWFA partially incorporates the ADA’s definitions of “reasonable accommodation” and “undue hardship,” providing that the terms “shall be construed as such terms are construed under such Act and as set forth in the regulations required by this chapter.”[33] How “reasonable accommodation” has been interpreted under the ADA is thus of considerable importance to interpreting the PWFA.[34] This Part will analyze the meaning of “reasonable accommodation” under the ADA, starting with the statutory definition (or lack thereof) of “reasonable accommodation.” It will then review the EEOC’s regulations implementing the ADA and judicial interpretations from ADA caselaw to determine how the ADA’s “terms are construed under such Act.”[35]
A. Statutory Text
Congress passed the ADA in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[36] Title I of the ADA prohibits covered employers from discriminating against qualified individuals “on the basis of disability” in employee applications, hiring, promotion, termination, compensation, job training, and “other terms, conditions, and privileges of employment.”[37] The statute defines “discriminate” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” unless “the accommodation would impose an undue hardship on the operation of the business.”[38] Thus, the accommodation requirement in the ADA has two potentially limiting factors: The accommodation must be “reasonable” and must not impose an “undue hardship” on the employer.[39]
The ADA’s reasonable accommodation requirement drew on existing federal accommodation mandates for disability under the Rehabilitation Act and religious practice under Title VII.[40] The ADA differed from Title VII in its definition of undue hardship as “an action requiring significant difficulty or expense” when considered in light of several factors, including the accommodation’s nature and cost, the employer’s size and financial resources, and the accommodation’s impact on the workplace.[41] Congress intentionally set the ADA’s “undue hardship” standard higher than Title VII’s standard for religious workplace accommodations.[42]
While the ADA’s undue hardship factors emphasize an accommodation’s financial impact, the standard explicitly includes both financial and non-financial burdens.[43] The use of the conjunction “or” between “significant difficulty” and “expense” indicates that these two concepts are not intended to be equivalent or synonymous. While “expense” refers to financial impact, “difficulty” does not necessarily involve cost considerations.[44] There are many non-financial reasons something may be hard to perform, such as logistical burdens, inconvenience to employers, impact on coworkers, the nature of the business, and so on.[45] The House Committee Report discussed an additional factor in an undue hardship analysis not included in the statute or regulations: the number of employees who could potentially benefit from an accommodation “where use by more than one person with a disability would reduce the relative financial impact of an accommodation.”[46]
In contrast to “undue hardship,” the ADA does not define “reasonable accommodation.”[47] Nor does the statute provide factors or criteria courts should consider when determining an accommodation’s reasonableness.[48] Instead, the statute provides examples of what may constitute a reasonable accommodation, namely “making existing facilities used by employees readily accessible to and usable by individuals with disabilities” and “job restructuring, part-time, or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”[49] Federal courts tasked with applying this ADA provision have expressed frustration over the lack of guidance in assessing an accommodation’s reasonableness.[50] Scholars have pointed to the lack of a statutory definition for this crucial term as the locus of much judicial confusion, misinterpretation, and error.[51]
The House Committee Report instructs employers to evaluate an accommodation’s reasonableness “in terms of effectiveness and equal opportunity” and notes that the accommodation mandate “is best understood as a process in which barriers to a particular individual’s equal employment opportunity are removed.”[52] The ADA’s examples demonstrate “types of accommodations that could ensure that a person with a disability will be able to perform the essential functions of a job.”[53]
B. EEOC’s ADA Regulations
The ADA directed the EEOC to issue formal regulations implementing the statute.[54] The EEOC published regulations in 1991.[55] Following the ADAAA’s passage in 2008, the EEOC issued a revised rule in March 2011.[56] Because the ADAAA did not amend the statute’s definitions of reasonable accommodation or undue hardship, the regulatory provisions explaining those concepts remained nearly identical in the 2011 rule.[57]
In defining undue hardship, the regulations essentially duplicate the ADA’s statutory language but add another factor to consider in the analysis: the accommodation’s impact “upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.”[58] The ADA rule’s appendix states that undue hardship encompasses noneconomic concerns as well as financial ones.[59] The term “refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.”[60] The EEOC has reiterated this interpretation in its guidance materials.[61]
In contrast to the ADA, the EEOC rule provided a definition for
reasonable accommodation. The rule states that reasonable accommodation means “[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position” or to apply to the position.[62] Reasonable accommodations are those that enable an employee “to enjoy equal benefits and privileges of employment” as employees without disabilities.[63] The rule then repeats the statutory examples of potential reasonable accommodations verbatim and recommends that employers engage in an “interactive process” to “identify the precise limitations” of the employee’s disability and “potential reasonable accommodations that could overcome those limitations.”[64]
The focus of the rule’s definition on what modifications will “enable” workers to apply for a job, perform their job, or “enjoy equal benefits and privileges of employment” indicates that the EEOC interprets “reasonable” as synonymous with “effective” in alleviating the conflict between a worker’s disability-related limitation and the demands of their job.[65] The appendix to the rule further reinforces this interpretation, noting that “an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”[66]
Nothing in the EEOC’s ADA rule directs courts to engage in a balancing test when analyzing the reasonableness of an accommodation or delineates what factors would be relevant to such a test. Nor does the rule specify separate definitions for either “reasonable” or “accommodation.” Instead, the ADA defines the terms together as a single concept. This approach led to a contradictory body of ADA caselaw where courts struggled to define “reasonable accommodation” under the ADA.
C. ADA Caselaw
While a large body of caselaw interpreting the ADA has developed since the law’s passage in 1990, most cases have not addressed the meaning of undue hardship or reasonableness.[67] Rather, most litigation in the decades following the ADA’s enactment hinged on what conditions qualified as a disability under the law.[68] Entitlement to accommodation is a threshold question courts must address before considering potential accommodations. Consequently, courts that found the plaintiff did not have a qualifying disability never reached the question of whether a requested accommodation was reasonable or posed an undue hardship.[69]
Courts proved stubbornly resistant to finding plaintiffs sufficiently disabled to qualify for accommodations at all, even after Congress amended the law in 2008 to expand the definition of disability.[70] Despite these eligibility challenges for litigants, there is a small body of caselaw that has examined the definitions of these statutory terms, with little consensus on what they mean.[71] Part I.C will explore three strands of ADA caselaw interpreting the meaning of reasonable accommodation that I predict will be relevant to PWFA claims: (1) transfer or reassignment to a vacant position, (2) remote work, and (3) leave from work.[72]
1. Barnett & Progeny: Transfer and Reassignment
The sole Supreme Court decision to address the meaning of reasonableness in ADA employment accommodations is US Airways, Inc. v. Barnett.[73] Part I.C.1 will analyze the decision and the resulting circuit split over how far to extend the case’s holding.[74]
US Airways, Inc. v. Barnett involved a former cargo handler for US Airways who had injured his back at work.[75] US Airways had a policy permitting those with the most seniority to bid periodically on certain positions. After his injury, plaintiff Robert Barnett used his seniority to transfer to a less physically demanding position in the mailroom.[76] Two years after his transfer, several employees senior to Barnett bid on his position.[77] Barnett requested to remain in his position as a reasonable accommodation under the ADA, despite his lesser seniority, because there were no other positions for which he was qualified that he could perform with his disability.[78] US Airways denied his request, and Barnett lost his job.[79]
Barnett sued, arguing that he was entitled to the mailroom position as a reasonable accommodation under the ADA.[80] The case reached the Supreme Court, presenting the question of whether an employee’s request for reassignment under the ADA trumped an employer’s seniority system.[81] Barnett relied on the EEOC’s regulatory definition to argue that “reasonable accommodation” was synonymous with “effective accommodation” and that courts should evaluate a proposed accommodation’s “ability to meet an individual’s disability-related needs, and nothing more.”[82]
Despite support for Barnett’s arguments in agency regulation and legislative history, the Court disagreed and declined to define “reasonable” as “effective.”[83] In ordinary English usage, the Court noted, “‘reasonable’ does not mean ‘effective.’”[84] Rather, it is the word “accommodation,” and not “reasonable,” that “conveys the need for effectiveness” because “[a]n ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.”[85] Thus, an employee’s request “for an effective accommodation could prove unreasonable because of its impact, not on business operations, but on fellow employees.”[86]
The Barnett Court established a two-part framework for assessing whether an accommodation is reasonable.[87] To defeat an employer’s motion for summary judgment, an employee must first show that the accommodation “seems reasonable on its face, i.e. [sic], ordinarily or in the run of cases.”[88] Second, if the employee shows that the desired accommodation is reasonable in the run of cases, the employer “must show special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.”[89]
The Court applied this framework to the accommodation at issue and held that Barnett failed to satisfy his burden at step one because accommodations that compel employers to violate seniority systems are usually unreasonable as a matter of law.[90] The Court held that seniority systems are critical to a workplace’s stability by “creating, and fulfilling, employee expectations of fair, uniform treatment,” such as “job security and an opportunity for steady and predictable advancement based on objective standards.”[91] Plaintiffs can rebut the presumption against accommodations that contravene a seniority system only by showing “that special circumstances warrant a finding that” the accommodation “is ‘reasonable’ on the particular facts.”[92]
After Barnett, an employer’s showing that a reassignment request conflicts with seniority rules is ordinarily sufficient to show the accommodation is unreasonable as a matter of law, absent special circumstances warranting an exception.[93] But Barnett left open a major question as to its reach: To what extent do the stability and fairness interests of nondisabled coworkers trump disabled coworkers’ accommodation rights more broadly? This question led to a circuit split over whether the rationale of Barnett extended to best-qualified hiring policies, whereby employers have specific criteria in place to select the most qualified internal candidate who applies to a job.[94]
The Fourth, Fifth, Eighth, and Eleventh Circuits have extended Barnett to best-qualified hiring policies.[95] These circuits, which I refer to as “Barnett expansionist circuits,” view the ADA’s reassignment provision as mandating only that employers permit individuals with a disability to apply for open positions. These cases reasoned that the interests of fairness and expectation of advancement highlighted in Barnett applied equally to other employer policies governing transfer or reassignment.
For example, in Elledge v. Lowe’s Home Centers, LLC, the Fourth Circuit held that Barnett’s reasoning applied to “reasonable, disability-neutral hiring policies and the equally reasonable expectations of other workers.”[96] Plaintiff’s employer, Lowe’s, had a merit-based internal hiring policy that involved a management training initiative to identify internal talent and train them for director-level roles.[97] The court found this system promoted the same workplace benefits heralded in Barnett: workplace stability, fairness, and morale.[98] The hiring system was “a reasonable, orderly, and fundamentally fair way of directing employee advancement within the company.”[99] Thus, as in Barnett, reassignment that violated such a policy was unreasonable.[100]
In contrast to the Barnett expansionist circuits, the Seventh, Tenth, and D.C. Circuits have limited Barnett, believing the ADA requires employers to transfer disabled employees to a vacant position if they are qualified, even if other more qualified candidates apply.[101] These courts have relied on statutory analysis of the ADA to reject the argument that the reassignment provision requires only that employers permit a disabled employee to apply on equal footing with colleagues.[102] Rather, per the D.C. Circuit, “the word ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else” because “the core word ‘assign’ implies some active effort on the part of the employer.”[103] Similarly, the Tenth Circuit emphasized that a separate ADA provision prohibits discrimination against disabled applicants and concluded that if the ADA’s reassignment provision requires only that employers consider disabled applicants without bias, “that language would add nothing to the obligation not to discriminate, and would thereby be redundant.”[104]
The Seventh Circuit changed its position on the question after Barnett. In a pre-Barnett case, EEOC v. Humiston–Keeling, Inc., the Seventh Circuit had held that employers were not required to reassign disabled employees to a vacant position if more qualified applicants applied.[105] But in EEOC v. United Airlines, Inc., the court concluded that the Barnett decision compelled it to reevaluate that holding.[106] Indeed, the court found Barnett should be read narrowly and not “so enlarged” such that “the narrow, fact-specific exception set out in Barnett” would “swallow the rule.”[107] The court emphasized that best-qualified applicant policies did not implicate the same interests in uniform, fair treatment that a seniority system would because decisions about who is “best qualified” are discretionary rather than automatic.[108]
2. The Presumption Against Remote Work
Another area of doctrinal ambiguity centers on whether remote work is a reasonable accommodation under the ADA. Much of the ADA caselaw on remote work predates or refuses to acknowledge the momentous changes in communications technology that have occurred in recent years. However, recent data suggest that judicial presumptions against remote work are beginning to shift.
Neither the ADA’s statutory text nor the EEOC’s ADA regulations address remote work.[109] The EEOC issued a technical assistance document in 2003 noting that remote work “may be a reasonable accommodation” where a worker’s “disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.”[110] The document was not a formal rule subject to notice and comment, and the agency has not updated it since.[111]
One influential, but now quite dated, opinion on remote work comes from the 1995 case, Vande Zande v. Wisconsin Department of Administration.[112] Vande Zande was the first case to establish a presumption against remote work as a reasonable accommodation. Plaintiff Lori Vande Zande was paraplegic from the waist down and was subject to pressure ulcers that required her to stay home from her job as a program assistant for the Wisconsin Department of Administration for weeks at a time.[113] Vande Zande requested several accommodations that her employer denied or provided only partially, including the ability to work from home for eight weeks without being required to forfeit her remaining sixteen-and-a-half hours of sick time.[114]
Like the plaintiff in Barnett would argue several years later, Vande Zande relied on the EEOC regulations to argue that an accommodation’s reasonableness referred to its effectiveness in resolving the conflict between her disability-related limitation and her job performance.[115] However, Judge Posner summarily rejected the argument that remote work was required under the ADA. Because most jobs involve teamwork under supervision, which he believed “generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance,” employers are typically not required to permit remote work as an accommodation.[116] Judge Posner conceded that this presumption may change as technology advanced but was nevertheless “the situation today.”[117]
Notably, Judge Posner did not discuss whether the specific circumstances of Vande Zande’s situation could have accommodated remote work. Additionally, Wisconsin did not present evidence establishing that allowing Vande Zande to work remotely would cause it undue hardship or that she was unable to perform the essential functions of her job at home.[118]
The Vande Zande decision had a significant chilling effect on the consideration of remote work claims for decades, with courts frequently rejecting remote work requests without factual case-by-case analysis.[119] Much of the ADA caselaw on the issue characterizes remote work as atypical, unusual, and rare and largely defers to employers’ claims that physical presence at work is an essential function of the job.[120] One analysis of over two dozen cases across every circuit court of appeals between 2012 and 2022 found that most courts “uphold the employers’ decision to deny remote work requests with little, if any, proof of the unreasonableness of remote work in the particular case.”[121] This analysis, by Professor Arlene Kantor, found no clear split among circuits, but rather “a split among and even within the circuits” given the fact-intensive nature of each inquiry.[122] For instance, the Sixth Circuit rejected a plaintiff’s remote work accommodation in EEOC v. Ford Motor Co. because it believed “technology has not changed” sufficiently to alter the judicial presumption against remote work and that physical presence continued to be an essential function “of most jobs.”[123] However, in Mosby-Meachem v. Memphis Light, the Sixth Circuit affirmed a jury verdict for a pregnant plaintiff who had been denied a remote work accommodation, as she had introduced sufficient evidence showing that 1) she could perform her job remotely and 2) her request was for a temporary period of time.[124] Departing from Vande Zande’s chilling effect on remote work cases, Mosby-Meachem is a precursor to the claims to come in the COVID-19 era.
The COVID-19 pandemic compelled many individuals to work remotely and led to significant changes in societal attitudes and workplace norms around the feasibility of remote work.[125] Disability law scholars have called for a shift in judicial approaches to remote work given changing norms since the start of the pandemic.[126] The EEOC issued guidance in 2020 on COVID-19 and the ADA, which sent somewhat mixed signals regarding its position on remote work.[127] The guidance emphasized that the ADA “never requires an employer to eliminate an essential function” of a job, so even if employers “temporarily excused performance of one or more essential functions” by permitting telework during the pandemic, they are free to recall workers whose essential functions cannot be done at home.[128] At the same time, an employee’s remote performance during the pandemic “could serve as a trial period” showing they are capable of doing the job remotely, and employers “should consider any new requests in light of this information.”[129]
Recent data indicate that judicial attitudes around remote work are beginning to change, spurred by major disruptions to in-person workplace norms during the COVID-19 pandemic. A Bloomberg Law report found that while employers prevailed in remote work claims about 70 percent of the time pre-pandemic, that number dropped to 60 percent between 2021 and 2023. Looking exclusively at 2022 to 2023, employers prevailed only 42 percent of the time.[130] The report also found that more remote work cases are reaching federal court since the start of the pandemic and judges are increasingly willing to acknowledge the existence and impacts of COVID-19 in their decisions.[131] Such early evidence suggests a welcome trend in remote work cases under the ADA, in which judges engage with remote work as a viable potential accommodation.
3. Leave from Work
Another area of doctrinal ambiguity centers on how courts should assess requests for leave as a reasonable accommodation and how long a leave of absence can extend. The ADA does not resolve the question because, unlike the Family and Medical Leave Act (FMLA), it is not a leave entitlement law and thus does not specify an amount of leave required.[132] The interaction between the two laws can be complex: Not all workers protected by the ADA are eligible for FMLA leave, and those that are eligible may need more than the twelve weeks permitted under the FMLA.[133] This has led to substantial confusion over employers’ obligations to grant leave requests under the ADA.[134]
Federal courts generally agree that medical leave can be a reasonable accommodation when it has a specified end date and will enable the employee to perform their job when they return to work.[135] Courts differ as to how long a leave of absence can extend before it becomes unreasonable because circumstances vary greatly between individual workers’ needs, conditions, and workplaces.[136] Most circuits agree that employers and courts should avoid per se rules—generalized rules that are applied without consideration for specific circumstances—on the length of leave and should instead engage in case-specific factual analyses for each leave request.[137] This approach comports with the EEOC’s guidance on the issue, which notes that the “ADA requires that employers make exceptions to their policies, including leave policies” to provide reasonable accommodations.[138] Even when employers have a policy setting a maximum leave limit, “they may have to grant leave beyond this amount” unless doing so would cause undue hardship.[139]
For example, in Garcia-Ayala v. Lederle Parenterals, Inc., the First Circuit reversed the district court’s grant of summary judgment to an employer because the lower court “was applying per se rules, and not giving the type of individual assessment of the facts that the [ADA] and the case law requires.”[140] The lower court had erred by accepting without analysis the employer’s one year leave limit because “[e]ach case must be scrutinized on its own facts” and application of per se rules “departs from the need for individual factual evaluation.”[141] The First Circuit emphasized that its ruling was dependent on the facts of Garcia-Ayala and “on different facts, a request for an extended leave could indeed be too long” to be reasonable.[142]
The Seventh and Tenth Circuits, by contrast, have staked out a restrictive position on leave, holding that an extended leave of absence renders an employee unqualified because the employee cannot work while on leave.[143] For instance, in Severson v. Heartland Woodcraft, Inc., plaintiff Raymond Severson had taken FMLA medical leave from his physically demanding job after experiencing severe back pain.[144] Seeking various treatments during his leave, he ultimately needed back surgery and went into surgery on the last day of his FMLA leave. At his doctor’s recommendation, Severson requested an additional two to three months of leave to recover from surgery. Heartland denied the additional leave and fired him.[145]
The EEOC argued on behalf of Severson that medical leave could be a reasonable accommodation when it was of specified length and would enable the employee to perform their job when they returned, but the court rejected this interpretation as in conflict with Barnett.[146] The court relied on the ADA’s definition of “qualified individual” to determine that a reasonable accommodation was “one that allows the disabled employee to ‘perform the essential functions of the employment position’” and therefore must “facilitate work.”[147] Extended leave cannot be a reasonable accommodation because a worker “who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.”[148] The Tenth Circuit used analogous reasoning in 2014, with then-Judge Neil Gorsuch ruling against the plaintiff’s medical leave request because accommodations “are all about enabling employees to work, not to not work.”[149]
Most circuits do not adhere to the Seventh and Tenth Circuits’ extreme position on leave. For example, the Sixth Circuit rejected such an argument in Blanchet v. Charter Communications, LLC, noting that if employers and courts assessed qualification at the time an employee requests leave, then “an employee requesting medical leave could always be terminated if she were unable to work at the time of her request.”[150] Such an interpretation would eliminate leave as a potential reasonable accommodation—an outcome at odds with the ADA and caselaw.[151] Instead, courts should view a plaintiff’s accommodation request not as one “that would permanently remove attendance as a requirement for her position,” but rather as one that would hopefully permit her to “fully fulfill the attendance requirement once her medical leave was over.”[152]
II. Reasonable Accommodation Under the PWFA
This Part will present the PWFA, provide a brief background of the law’s passage, and discuss the statutory text and EEOC regulations. It will then analyze how the three accommodations discussed in Part I will fare under the PWFA rule. Finally, this Part will discuss the recent Supreme Court decision, Loper Bright Enterprises v. Raimondo, and what impact it may have on judicial treatment of the EEOC’s PWFA rule.[153]
A. Background: From Geduldig to the PWFA
While many pregnant people can and wish to continue working while pregnant, they often need adjustments to their typical job responsibilities or schedule to maintain their health and pregnancy.[154] For example, pregnant workers may require more frequent restroom or water breaks, may have lifting restrictions, or may need time off to attend prenatal appointments or recover after childbirth.[155] While some workers ask for and receive such modifications to their work responsibilities with no issue or formal process, many workers do not.[156]
Pregnant workers in lower-paying jobs, which tend to offer the least freedom in terms of when to eat, drink, take a break, or sit down, are more likely to seek explicit permission to do so.[157] Lack of access to accommodations disproportionately impacts workers of color, who are overrepresented in lower-paying jobs and in jobs requiring physical tasks that may be difficult during pregnancy.[158] The PWFA was largely aimed at ensuring that low-wage workers with little workplace autonomy and flexibility have access to accommodations.[159] Without accommodations, pregnant workers were frequently forced to leave their jobs to maintain the health of their pregnancy, sacrificing their income and health insurance, or continue working and risk pregnancy complications.[160]
The path leading to the PWFA’s passage goes back nearly fifty years. Until the 1960s, sex and pregnancy discrimination were ubiquitous in the American workplace.[161] Even apart from their relegation to a narrow range of jobs with lower pay and fewer opportunities for advancement, women were regularly fired from their jobs when they became pregnant or were expected to quit during their pregnancy.[162] The lack of maternity leave policies often ensured this would occur.[163] This state of affairs reflected assumptions that women were in the workplace only temporarily: until they could marry, start a family, and rely on a male breadwinner for support.[164] In 1964, Congress passed Title VII of the Civil Rights Act, which prohibits sex discrimination in employment.[165] In the 1960s and 1970s, with the rise of the second-wave feminist movement, activists and lawyers began challenging sex-based employment policies as violations of Title VII and the Fourteenth Amendment’s Equal Protection Clause. However, it was unclear how these constitutional and statutory bans on sex discrimination applied to pregnancy and childbirth.
Two Supreme Court cases from the 1970s tested whether sex discrimination encompassed pregnancy-based discrimination. In these cases, General Electric v. Gilbert and Geduldig v. Aiello, the Court evaluated whether employment disability insurance plans that excluded pregnancy from coverage discriminated on the basis of sex.[166] The Court held that excluding pregnancy did not discriminate on the basis of sex under either the Equal Protection Clause or Title VII.[167] The plans did not withhold a benefit from all women that they provided to all men, the Court reasoned, but instead withheld benefits from pregnant people that they provided to non-pregnant people—a group that included both men and women.[168] Because the comparator group of non-pregnant people included members of both sexes, there was no sex discrimination.[169]
Rejecting this logic, Congress swiftly introduced and passed the Pregnancy Discrimination Act (PDA) in 1978.[170] The PDA amended Title VII’s definition of “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions” in order to clarify that discrimination against pregnant and postpartum workers violated the statute’s ban on sex discrimination.[171] The House of Representatives emphasized that the new law aimed “to [e]nsure that working women are protected against all forms of employment discrimination based on sex.”[172]
Despite the intentions of Congress to protect pregnant people from employment discrimination, the PDA has significant limitations. The Act is a traditional antidiscrimination law that instructs employers to treat pregnant workers “the same” as non-pregnant workers with similar limitations.[173] It does not include an affirmative requirement that employers accommodate pregnant and postpartum workers. Workers are therefore entitled to a pregnancy-related accommodation under the law only if their employer grants similar requests to non-pregnant workers who also need changes to their jobs.[174] This required plaintiffs challenging their employer’s denial of accommodations to collect evidence of how non-pregnant workers were treated and led to substantial litigation over which non-pregnant workers could be considered.[175] Producing such evidence can be a significant hurdle, especially for low-wage workers, who are more likely to work in isolated settings without knowledge of how their employer treats other employees.[176] Litigation over what subgroup of employees should be compared to pregnant workers reached the Supreme Court in 2015 in Young v. United Parcel Service, which led to even further confusion and did little to help plaintiffs.[177] For instance, a 2019 report found that over two-thirds of workers lost their pregnancy accommodation cases after the ruling, with a majority of losses related to the plaintiff’s comparators.[178]
Pregnancy accommodations were also not mandated by the ADA when it was passed in 1990 because pregnancy is not considered a disability unless it leads to complications or conditions that otherwise meet the law’s definition of disability.[179] Even after the ADA was amended to expand its definition of disability, pregnancy remained largely outside its purview.[180] The interplay between the PDA and the ADA meant that a pregnant worker whose pregnancy did not lead to serious complications, and who could not prove their employer was providing analogous modifications to non-pregnant workers, would not have a legal right to an accommodation under federal law.[181] It was this gap that the PWFA movement intended to correct.[182]
The federal PWFA grew out of a decade-long movement advocating for local, state, and federal legislation entitling pregnant and post-partum workers to job modifications regardless of whether their employer accommodates other workers.[183] Thirty states, Washington, D.C., and several cities had enacted PWFAs by 2021.[184] A federal PWFA was first introduced in Congress in 2012 by Representative Jerrold Nadler, who proposed a version of the bill in each subsequent session.[185] Congress passed the federal PWFA in December 2022 as part of an omnibus funding bill, and the law took effect on June 27, 2023.[186]
B. Statutory Text of the PWFA
The text of the PWFA requires covered employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee” absent undue hardship.[187] In its definition section, the PWFA provides:
[T]he terms ‘reasonable accommodation’ and ‘undue hardship’ have the meanings given such terms in section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms are construed under such Act and as set forth in the regulations required by this chapter, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation.[188]
The PWFA explicitly incorporates the ADA’s definitions of “reasonable accommodation” and “undue hardship” as well as how the terms are interpreted in (then-forthcoming) EEOC regulations. A plain reading of the statutory text thus requires courts interpreting these terms to look to both the EEOC’s PWFA rule and the ADA.[189]
The PWFA itself differs from the ADA in two ways that promise to better protect workers and minimize litigation: which conditions entitle a worker to coverage and whether workers must be able to perform a job’s “essential functions” to qualify.[190]
First, the PWFA provides outright that workers do not need to meet the ADA’s definition of “disability” in order to be covered by the PWFA.[191] To be covered, workers must have a “known limitation” connected to pregnancy, childbirth, or a related medical condition.[192] The PWFA House Report and the EEOC emphasized that this change aimed to reduce the type of litigation that proliferated under the ADA over whether plaintiffs had a qualifying disability.[193]
Second, the PWFA’s definition of “qualified employee” differs from the ADA’s. Under the ADA, employees are “qualified” only if they can “perform the essential functions of the employment position” they hold or hope to hold with or without a reasonable accommodation.[194] Like the ADA, the PWFA qualifies employees who can perform essential job functions with or without accommodation;[195] but if an employee does not meet this criterion, the PWFA offers her an alternative path to qualification if certain conditions are met: (1) she is unable to perform an essential function “for a temporary period,” (2) the essential function can be performed “in the near future,” and (3) “the inability to perform the essential function can be reasonably accommodated.”[196] Congress added this provision “to make clear that the temporary inability to perform essential functions due to pregnancy, childbirth, or related medical conditions does not render a worker ‘unqualified.’”[197]
C. EEOC’s PWFA Regulations
The PWFA directed the EEOC to promulgate regulations implementing the statute under the Administrative Procedure Act (APA).[198] The statute specifically required that the regulations provide examples of reasonable accommodations.[199] After a period of notice and comment, the EEOC published a final rule (“PWFA rule” or “the rule”) on April 19, 2024, which took effect on June 18, 2024.[200]
The PWFA rule issued by the EEOC defines the term “reasonable accommodation” and provides examples.[201] The definition closely follows the EEOC’s ADA regulations but replaces “qualified applicant with a disability” with “qualified applicant with a known limitation under the PWFA.”[202] The PWFA rule also adds to the definition: “[t]emporary suspension of essential function(s) and/or modifications or adjustments that permit the temporary suspension of essential function(s).”[203] In the examples section for reasonable accommodation, the PWFA provides an extensive, non-exhaustive list of examples relevant to pregnancy and related conditions, including “breaks for use of the restroom, drinking, eating, and/or resting,” “placement in the covered entity’s light or modified duty program,” and remote work.[204]
The PWFA rule also differs from the ADA regulations by providing “predictable assessments” for reasonable accommodations.[205] These are four common accommodations sought by pregnant workers that the EEOC believes will be reasonable and will not impose an undue hardship “in virtually all cases.”[206] They include permission to carry and drink water, take additional bathroom breaks, sit or stand as needed, and take breaks to eat or drink.[207] When a worker asks for one of these accommodations, the EEOC instructs, “the individualized assessment” of whether the accommodation is reasonable and poses an undue hardship “should be particularly simple and straightforward.”[208] This is because these accommodations are almost always simple, inexpensive, and can be granted quickly, “thereby reduc[ing] litigation.”[209] The EEOC does not foreclose that one of these accommodations might pose an undue hardship in particular circumstances, but notes that for the most part, employers should avoid disputing such requests, as the agency is unlikely to find that they are unreasonable or pose an undue hardship.[210]
When interpreting the PWFA’s definition of “qualified employee,” the rule defines “temporary” as “lasting for a limited time, not permanent” and clarifies that a pregnant worker can perform the essential functions of the job “in the near future” if she can do so “within generally 40 weeks of its suspension.”[211]
The rule also clarifies the EEOC’s position on the meaning of undue hardship, asserting that the analysis should always be an individualized assessment performed on a case-by-case basis.[212] What constitutes an undue hardship “is not limited to financial difficulty” but also encompasses accommodations that “would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.”[213] For example, courts might assess an accommodation’s impact on “distribution of workloads, business operational needs, and elemental changes to the day-to-day operations of a business.”[214] While an accommodation’s effect on other workers may be considered in an undue hardship analysis, the EEOC emphasizes that “generally coworker discomfort does not establish undue hardship.”[215] Nor can an employer demonstrate undue hardship by pointing to other employees’ “fears or prejudices” toward pregnant workers or by claiming an accommodation negatively impacts coworker morale.[216]
The remainder of Part II.C will address how the three accommodations discussed in Part I will likely fare under the PWFA rule.
1. Transfer and Reassignment
The PWFA rule states that reassignment to a vacant position can be a reasonable accommodation under the PWFA, demonstrating that the EEOC agrees with the Seventh, Tenth, and D.C. Circuits in limiting the reach of US Airways, Inc. v. Barnett.[217] Just like the ADA and ADA regulations, the PWFA rule lists “reassignment to a vacant position” as an example of a reasonable accommodation under the PWFA.[218] The rule also provides detailed examples in its appendix of various accommodation scenarios, including when reassignment is required. Example 28 is particularly relevant, addressing what employers should do if a worker has a pregnancy-related lifting restriction and all the employer’s light-duty positions are filled for the next six months.[219] In that situation, the EEOC instructs that the employer should consider other options, such as the temporary suspension of an essential function of the worker’s position or job restructuring.[220] However, if no such accommodations can be provided without undue hardship, the employer “should consider providing a temporary reassignment to a vacant position.”[221] Indeed, the employer “must offer her the temporary reassignment as a reasonable accommodation” if a vacant position exists that does not require lifting and that the employee could perform with or without a reasonable accommodation, absent undue hardship.[222]
Notably, this language goes beyond the ADA rule by requiring an employer to give a pregnant worker the option to transfer if it cannot provide an accommodation that allows her to remain in her position.[223] The example, however, qualifies the word “reassignment” with the word “temporary,” underscoring that many transfer requests under the PWFA are likely to be for a temporary period of time.
2. Remote Work
The PWFA rule clearly supports remote work as a reasonable accommodation under the PWFA. The rule includes the following in its examples of reasonable accommodation: “telework, remote work, or change of work site.”[224] In explaining these examples, the EEOC notes that telework “has been recognized by the Commission as a potential reasonable accommodation under the ADA” and that under the PWFA, “telework could be used to accommodate, for example, a period of bed rest, a mobility impairment, or a need to avoid heightened health risk, such as from a communicable disease.”[225] The rule indicates that if an employee requests remote work under the PWFA, the employer may appropriately require documentation demonstrating the need.[226]
The EEOC’s inclusion of remote work in its PWFA rule represents a departure from its ADA regulations. The agency did not address remote work in its ADA rule.[227] Critically, the EEOC’s inclusion of remote work in the PWFA rule formalizes the agency’s position on remote work under the PWFA.[228]
3. Leave
The PWFA rule lists both paid and unpaid leave as examples of reasonable accommodations.[229] While the rule makes clear that the PWFA does not mandate employers provide additional paid leave, employers must permit employees to use any paid leave they have accrued or that is available to them, such as via temporary disability insurance.[230] Employers also may not compel an employee to take leave if she does not wish to do so and there is another reasonable accommodation that would allow her to keep working—a requirement codified in the statute itself.[231]
Leave as a reasonable accommodation will be particularly important under the PWFA because many American workers lack a legal right to family and medical leave.[232] For these workers, the PWFA offers a path to job-protected unpaid time off during pregnancy and childbirth recovery.[233] This is so even for workers who are ineligible for leave under employer policies or leave entitlement laws.[234] For workers who are already covered under a paid or unpaid leave law, the PWFA offers a path to additional leave for those who need it as a reasonable accommodation.[235]
Despite these advances, the EEOC declined to specify what constitutes a reasonable amount of leave time for childbirth recovery, although comments urged it to.[236] The agency also did not add eight weeks of childbirth leave or a particular number of healthcare appointments to the list of predictable assessments, even though employers “routinely reject[]” leave requests.[237] The EEOC explained that it decided against articulating a standard “given the differences in workplaces and the possibility that the employee has access to leave through the FMLA, state law, or an employer’s program.”[238]
The EEOC’s decision not to specify a reasonable leave length is unfortunate. Although trepidation over establishing a ceiling for reasonable leave is understandable, this should not have prevented the EEOC from firmly establishing a floor.[239] Nevertheless, the PWFA rule does provide that per se rules dictating maximum leave lengths may violate the PWFA. Rejecting the logic and holding of Severson v. Heartland Woodcraft, Inc., the agency asserts that it “is aware of and disagrees with ADA cases that held, for example, that two to three months of leave following a twelve-week FMLA period was presumptively unreasonable as an accommodation.”[240] In addition to rejecting the Severson decision as a misapplication of the ADA, the EEOC clarifies that Severson categorically does not apply in the PWFA context.
In Severson, the Seventh Circuit relied on the ADA’s definition of “qualified individual” to conclude that a reasonable accommodation must permit the employee to “perform the essential functions” of their “position,” and thus a multi-month leave was not reasonable because an employee could not work while on leave.[241] In contrast, the EEOC notes in the PWFA rule that “[l]eave as a reasonable accommodation (e.g., for recovery from pregnancy, childbirth, or related medical conditions or any other purpose) does not count as time when an essential function(s) is suspended.”[242] A worker who needs leave therefore “can readily meet the definition of ‘qualified’ under the first part of the PWFA definition because it is reasonable to conclude that once they return from the period of leave . . . they will be able to perform the essential functions of the job.”[243]
Further, the second part of the PWFA’s definition of qualified employee expands its coverage to workers who need a suspension of essential functions of their job as long as the suspension is “temporary,” the functions can be performed “in the near future,” and the inability to perform the functions can be reasonably accommodated.[244] As discussed above, this definition is markedly different from the ADA, which contains no exceptions for workers who need a temporary suspension of essential functions.[245] Thus, even if an employee “will not be able to perform all of the essential functions at the end of the leave period,” she may nevertheless remain qualified under the second part of the PWFA definition if her employer can accommodate the temporary suspension of those functions.[246]
D. PWFA Regulations Under Loper Bright
Part II.D will address the recent Supreme Court decision in the consolidated cases Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce and the decision’s likely impact on judicial treatment of the PWFA rule.[247] In Loper Bright, the Supreme Court overturned its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which had established a level of deference to agency regulations known as Chevron deference.[248] Under Chevron deference, courts evaluating agency interpretations of an ambiguous statute deferred to the agency’s interpretation if it offered “a permissible construction of the statute,” even if the court did not find it to be the best interpretation.[249] This deference was premised on the assumption that a statute’s ambiguity implicitly delegated authority to agencies to fill in the gaps.[250] The Court held in Loper Bright that the APA requires courts to exercise their own independent judgment in the face of statutory ambiguity rather than defer to an agency’s interpretation.[251]
While Loper Bright held that courts must exercise their own independent judgment when faced with ambiguous statutory text, the decision is less clear as to how courts should treat statutes that explicitly delegate interpretive authority to agencies. In a much-debated passage,[252] the Court appears to lay out a separate rule for statutes that explicitly delegate interpretative authority to an agency:
In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate[]” to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that “leaves agencies with flexibility,” such as “appropriate” or “reasonable.”
When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” and ensuring the agency has engaged in “reasoned decisionmaking” within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.[253]
This passage indicates that some degree of judicial deference remains proper where Congress explicitly and constitutionally delegates authority to an agency to “give meaning to a particular statutory term.”[254] In such circumstances, the role of courts under Loper Bright is to ensure that agencies engaged in “reasoned decisionmaking” within the boundaries of their explicit statutory delegation.[255] Applying Loper Bright to the PWFA, the EEOC likely exercised “reasoned decisionmaking” and acted within the boundaries of its authority when it defined reasonable accommodation.
There is little doubt that Congress expressly delegated authority to the EEOC to interpret the meaning of “reasonable accommodation” under the PWFA. The PWFA rule is one of three statutorily mandated sources for interpreting the phrases reasonable accommodation and undue hardship. The statutory definition for the phrase provides that the “the terms ‘reasonable accommodation’ and ‘undue hardship’ have the meanings given such terms in section 101 of the Americans with Disabilities Act . . . and shall be construed as such terms are construed under such Act and as set forth in the regulations required by this chapter.”[256] The statute therefore requires courts to look to how the terms are set forth in the PWFA regulations to discern the meaning of the phrase, as well as to the statutory text of the ADA and how the terms have been construed under the ADA.[257]
Later in the text, the statute directly instructs the EEOC to engage in rulemaking, providing further evidence of Congress’s intent to delegate interpretive authority to the agency.[258] The PWFA provides that within one year of enactment, the EEOC “shall issue regulations in an accessible format . . . to carry out this chapter. Such regulations shall provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.”[259] Congress thus explicitly delegated authority to the EEOC to interpret the meaning of “reasonable accommodation” twice in a statute that is a mere six pages long.[260] The specificity of the statute’s delegation to the EEOC to interpret the phrase underscores congressional recognition of the complexities of the concept underlying the ADA and the resulting need for clarification as to how it applies to the new law.[261]
The EEOC also likely engaged in “reasoned decisionmaking” within the boundaries of its statutorily authorized discretion.[262] The agency’s proposed rule, issued contemporaneously with the statute, received over one hundred thousand comments from members of the public.[263] In the final rule, the EEOC amended several provisions in response to comments and engaged thoughtfully with those it disagreed with. The guidance document accompanying the rule comprehensively grapples with multiple sides of complex issues, reflecting the agency’s long history of expertise in interpreting employment discrimination laws, including the ADA and PDA. It engages thoroughly with ADA and Title VII caselaw, the PWFA’s legislative history, prior EEOC regulatory materials, legal scholarship, and medical literature.[264]
Still, the impact of Loper Bright on the PWFA rule and administrative law in general remains uncertain.[265] Several lawsuits have already been filed seeking to block enforcement of a PWFA rule provision defining “related medical condition” to include abortion.[266] Those lawsuits have been largely successful in their attempts to block enforcement of the rule’s abortion provision.[267] Loper Bright may inspire more such challenges to the PWFA rule on the grounds that the EEOC overstepped its statutory authority or misinterpreted ambiguous statutory language.[268]
Whatever the outcome of these challenges, there is a critical difference between the rule provision at issue in the cases mentioned above and the rule’s reasonable accommodation definition. Namely, the PWFA is unambiguous in its delegation of authority to the EEOC to interpret the phrase “reasonable accommodation,” and thus that definition merits distinctive treatment under Loper Bright.[269] While we have yet to see precisely how courts will apply Loper Bright and how aggressively they will police the boundaries of explicit delegations to agencies going forward,[270] courts reviewing the PWFA rule’s interpretation of reasonable accommodation should follow Loper Bright’s instructions for express congressional delegations by evaluating whether the agency has engaged in reasoned decision-making within the boundaries of that delegation.[271]
III. How Courts Should Interpret PWFA Claims
This Part draws on the sources discussed in Parts I and II to propose a framework for courts assessing reasonable accommodation claims under the PWFA. This framework adapts ADA doctrinal approaches while accounting for key differences between the PWFA and the ADA discussed above, as well as directives from the EEOC’s PWFA rule. This Part will then apply the framework to the three accommodations discussed above—transfer, remote work, and leave—to demonstrate how courts should approach PWFA claims.
A. Proposed Framework for PWFA Claims
The PWFA requires courts to adapt their approaches in consideration of the statutory differences between the ADA and PWFA rather than merely import the ADA doctrinal frameworks and presumptions discussed in Part I. Drawing on these differences and on the EEOC’s regulations, I recommend that courts consider the following factors when evaluating reasonable accommodation claims under the PWFA: (1) the differences in the definition of “qualified” between the ADA and PWFA and the related implications of an accommodation’s temporariness, and (2) the impact of post-COVID shifts in workplace norms on the requested accommodation. Considering these factors will allow courts to adjust ADA approaches in a way that properly effectuates congressional intent in passing the PWFA.
First, most accommodation requests under the PWFA are likely to be temporary. Pregnancy, which typically lasts about forty weeks, is a temporary condition with “an ascertainable end date.”[272] Many common accommodations sought during and after pregnancy are therefore time-limited, such as lifting restrictions, avoidance of certain chemicals, extra breaks, and leave for prenatal appointments. Similarly, well-established norms within the medical profession and temporary disability insurance programs recommend at least six to eight weeks for the postpartum recovery period, depending on the type of delivery.[273] Many other “related medical conditions” will be similarly temporary in nature, such as lactation and breastfeeding, cramping or bleeding after miscarriage, or rounds of fertility treatments.[274]
In contrast, while some disability accommodation requests are temporary, many are permanent, indefinite, or ongoing. Indeed, the EEOC emphasized this distinction in its economic analysis of the impact of the PWFA, noting that “the percentage of no-cost accommodations is likely to be higher for accommodations related specifically to pregnancy, childbirth, or related medical conditions, because many will be simple and no-cost . . . and because the vast majority will be temporary.”[275]
The PWFA’s definition of which employees are qualified reflects this reality by expanding the ADA’s definition to provide a more inclusive standard for accommodation. The PWFA’s definition of “qualified employees” covers those who need a suspension of “essential functions” of their job as long as the suspension is “temporary,” the essential functions can be performed “in the near future,” and the inability to perform the functions can be reasonably accommodated.[276] The ADA contains no similar statutory provision for workers who need a temporary suspension of essential functions.[277]
This statutory difference means that courts must interrogate an employer’s claim that a requested PWFA accommodation eliminates a job’s essential functions. Even if a court finds that a plaintiff’s requested accommodation would eliminate an essential function of her position, the inquiry does not end there. Rather, the court must assess whether the plaintiff is qualified under the second part of the statutory definition and whether the temporary suspension of the essential functions can be reasonably accommodated. Indeed, accommodating employees whose health issues temporarily prevent them from performing the essential functions of their job “is one of the key purposes of the PWFA.”[278]
Second, the PWFA was passed more than two years after the COVID-19 pandemic emerged.[279] The pandemic forced many people to work remotely who had never done so before.[280] Massive advances in communication technologies and videoconferencing have untethered many aspects of work from the physical workplace.[281] Dramatic increases in rates of remote work during the pandemic demonstrated that many jobs that employers previously claimed must be done in person could, in fact, be done remotely. While only about 7 percent of workers whose job could be done remotely worked primarily from home prior to the pandemic, that number jumped to 55 percent by October 2020.[282] By 2023, about a third of workers with jobs that can be done remotely were working from home all of the time and another 41 percent were doing so part of the time.[283] Many employers actually saw benefits to having a remote workforce. Data showed that workers were just as productive, and sometimes even more productive, from home as they had been in the office.[284] Employers saved money on office space, utilities, maintenance, and equipment, as well as by reducing absenteeism and improving retention.[285]
The EEOC recognizes the prevalence of remote work in the PWFA rule by directly listing it as an example of a reasonable accommodation under the PWFA.[286] Thus, courts should take particular care under Loper Bright to avoid importing outdated doctrinal presumptions concerning remote work, including reliance on Vande Zande and its progeny.[287] Such reliance would violate the statutory delegation of interpretive authority to the EEOC, as well as contravene contemporary standards of workplace norms.[288]
B. Application of Framework
Part III.B will apply the framework presented above to the three accommodations discussed in Parts I and II: (1) transfer and reassignment, (2) remote work, and (3) leave from work. Part III.B will demonstrate how consideration of the factors presented above alters the ADA doctrinal approach to one that properly evaluates PWFA accommodation claims. While I focus on these three particular accommodations, I emphasize that courts can use the framework presented above when evaluating other accommodation requests where ADA doctrinal approaches conflict with the PWFA rule. For example, courts evaluating a worker’s request for temporary changes to her schedule or hours should first consider whether the temporary nature of the accommodation impacts its reasonableness or the undue hardship analysis, and second, whether post-COVID shifts in workplace norms have changed doctrinal presumptions favoring rigid work hours.
1. Transfer and Reassignment
Requests for reassignment or transfer under the PWFA necessitate a modified analysis under Barnett that accounts for the framework factor of temporariness and the inclusive standard of who is “qualified” for accommodations under the law. For example, consider a pregnant worker who requests to transfer to a different position that does not require overnight shifts, a vehicle assembly worker who requests a temporary transfer to a position that does not require bending over or lying on her stomach during pregnancy,[289] or a worker who requests to transfer to avoid exposure to noxious chemicals while undergoing fertility treatments.[290]
Under the framework articulated in Barnett, an employee seeking a transfer must first show either that the desired accommodation is reasonable in the run of cases or that special circumstances warrant a finding that the accommodation is reasonable in their particular situation.[291] Second, if the employee can demonstrate this, the burden shifts to the employer to show undue hardship in the particular circumstances.[292]
Thus, courts should first ask whether a temporary transfer due to a PWFA-covered limitation is reasonable in the run of cases and, if not, whether the circumstances warrant a finding that the accommodation is reasonable in the plaintiff’s case. Critically, an employee who requests a temporary transfer under the PWFA that violates an employer’s seniority system does not necessarily implicate the values and interests emphasized in Barnett and Barnett expansionist circuits.[293]
The Barnett Court held that accommodations compelling employers to violate seniority systems are typically unreasonable as a matter of law because they endanger “employee-management relations.”[294] The Court worried that disability accommodations would endanger nondisabled coworkers’ reliance on “objective standards” governing “opportunity for steady and predictable advancement.”[295]
However, the interests the Barnett Court relied on to justify its holding are not equally disrupted by temporary reassignment. A coworker with seniority who is unaffected by pregnancy, childbirth, or related medical conditions and who wishes to transfer to a desirable position may still do so once their pregnant colleague returns to her original position. While an employee with seniority may have to wait several extra weeks or months before being transferred, this minor delay does not imperil “expectations of fair, uniform treatment” or their chance of “steady and predictable advancement” in the same way as their colleague’s permanent transfer might, by necessitating an outright denial of the position to the senior colleague.[296]
It is possible that an applicant with seniority whose junior colleague transfers to a desirable position as a temporary accommodation may quit in frustration at the delay and find a different position. However, because a pregnant worker’s temporary transfer does not preclude the senior coworker from competing for the job afterward, concerns over workplace fairness and reliance interests are minimized, if not eliminated. Courts should therefore take care not to import Barnett’s conclusion to the PWFA without consideration of whether a temporary transfer is reasonable in the run of the cases.
This same reasoning applies to temporary transfers that violate best-qualified applicant policies. An employer with a best-qualified applicant policy who believes that a nonpregnant worker is better qualified for a particular open position can still offer the position to the better qualified employee once the PWFA-eligible worker no longer needs the accommodation. As with seniority systems, temporary reassignment does not imperil a better qualified coworker’s chances of securing the desired position once their pregnant colleague returns to their prior job. Therefore, even in Barnett expansionist circuits, plaintiffs should have an easier time showing that a temporary transfer is reasonable in the run of cases under step one of Barnett’s framework.
Even if a court does not find that a temporary transfer is reasonable in the run of cases, plaintiffs can still shift the burden to their employer by showing “that special circumstances warrant a finding” that the accommodation is reasonable “on the particular facts.”[297] Courts must therefore permit plaintiffs to present evidence that their particular facts render a temporary transfer reasonable in their situation, such as by showing that the transfer will not disturb their coworkers’ chances of applying or succeeding them once they return to their previous position.
Rather than import the presumption against certain transfers articulated in Barnett, federal courts should carefully consider the temporariness of any PWFA transfer request when assessing its reasonableness.
2. Remote Work
While federal courts have largely been hostile to remote work accommodations since the Vande Zande opinion nearly thirty years ago,[298] judicial treatment of remote requests has begun to change in the past several years as a result of the COVID-19 pandemic. This treatment will hopefully continue evolving as remote work becomes increasingly entrenched.[299] Courts considering remote work requests under the PWFA should follow the lead of this recent doctrinal shift and reject outdated presumptions against remote work.
Workers affected by pregnancy, childbirth, or related medical conditions may seek a temporary remote work accommodation for many reasons, such as severe nausea and vomiting during early pregnancy,[300] bed rest during late pregnancy, discomfort and bleeding following a miscarriage, or difficulty with breastfeeding or pumping after childbirth.[301] Of course, not all jobs can be done remotely, and physical presence at work is an essential function of some jobs.[302] I do not mean to suggest that remote work is always appropriate or desirable for workers covered by the PWFA or ADA. Rather, I emphasize that my proposed framework counsels against importing outdated presumptions regarding remote work and instead calls for an individualized assessment of each request.
First, as with the accommodation of job transfer, the likely temporariness of many remote work requests under the PWFA necessitates a reconsideration of the judicial presumption against remote work.[303] Courts should carefully consider the differences between ongoing or permanent requests, like those often at issue in ADA caselaw, and temporary remote work requests, like those more likely to be sought under the PWFA.
Even if courts continue to defer to employers’ assertions that in-person attendance at work is an essential function of a job, the PWFA’s definition of qualified employee compels courts to consider whether a worker remains qualified despite the temporary suspension of the essential function. While the ADA “never requires an employer to eliminate an essential function” of a job as an accommodation,[304] the PWFA may do so if the suspension is time-limited, can be accommodated, and does not impose an undue hardship.[305] Judicial analysis must take this definitional difference into account when considering whether in-person attendance is an essential function of a position. For instance, if an employer excused certain primary duties temporarily during the COVID-19 pandemic and the employee was able to adequately perform her job, courts should consider that as strong evidence that a temporary suspension of that duty would not be unreasonable or impose an undue hardship.
Second, courts should consider remote work requests in light of advances in communication technology and post-pandemic shifts in workplace norms. While most courts that have addressed remote work under the ADA have been hostile to such requests, these cases rely on outdated precedent that has failed to recognize major advances in communication and workplace technology. Most ADA remote work cases predate the COVID-19 pandemic, which dramatically altered societal understanding around the feasibility of remote work.[306]
Courts should dispense with the outdated and erroneous assumption that in-person presence in the workplace is essential to all jobs. This presumption has been upended by the reality of many workers’ experiences across diverse positions and fields during the COVID-19 pandemic. Rather, PWFA courts should take their cue from recent trends that recognize pandemic-era shifts in workplace norms and should heed the Seventh Circuit’s admonition (even before the pandemic) that “[t]echnological development and the expansion of telecommuting” since Vande Zande “likely mean that such an accommodation is not quite as extraordinary as it was then.”[307] Judicial inquiry into the reasonableness of a remote work accommodation should be “context-specific” and should consider the particulars of a plaintiff’s need and position.[308] For instance, courts should consider whether available technology allows the plaintiff to perform the job remotely, whether other employees in the plaintiff’s position have been able to perform the job remotely, and whether the plaintiff successfully performed the job remotely during the pandemic.
This argument is not limited to PWFA remote work claims. The importance of accounting for post-COVID-19 shifts in workplace norms applies to remote work claims under the ADA as well, as courts have lately begun to recognize.[309] At the same time, the PWFA’s modified definition of “qualified employee” and the EEOC’s explicit inclusion of remote work in the PWFA rule provide especially persuasive reasons for courts to avoid importing outdated and inapposite presumptions from ADA caselaw to the PWFA.
3. Leave
The differences in the statutory definition of “qualified” employee between the ADA and PWFA should lead courts to reject the Seventh and Tenth Circuits’ extreme position on leave as inapplicable to the PWFA.[310] Instead, courts should follow the majority of circuit courts and engage in case-specific factual analyses for each leave request, rather than honor employers’ per se rules for leave length without review.[311]
The doctrinal rationale for the presumption against leave does not comport with the PWFA’s definition of qualified employee.[312] The most common reasons workers will need leave under the PWFA will likely be for time-limited recovery from childbirth and intermittent leave to attend prenatal or fertility appointments, but workers may also seek leave for other reasons, such as short-term leave to seek miscarriage or abortion care.[313] As the EEOC specifically noted in the PWFA rule, an employee seeking leave under the PWFA “can readily meet the definition of ‘qualified’ . . . because it is reasonable to conclude that once they return from the period of leave . . . they will be able to perform the essential functions of the job.”[314] This view follows the instruction of the First Circuit, the Sixth Circuit, and others that “[e]ach case must be scrutinized on its own facts” and that courts should consider whether a worker will be able to “fulfill the attendance requirement once her medical leave [i]s over” and not at the time that she requests leave.[315] Furthermore, even if an employee “will not be able to perform all of the essential functions at the end of the leave period,” she may nevertheless remain qualified under the second part of the PWFA’s definition if her employer can accommodate the temporary suspension of those functions.[316]
Just as the majority of courts recognize under the ADA, leave can be a reasonable accommodation under the PWFA when it has a specified end date and will enable the employee to perform their job when they return to work,[317] or their employer can accommodate the temporary suspension of essential functions once they return to work.[318] To comply with the EEOC’s definition of qualified employee in the PWFA, courts should reject per se rules regarding permissible leave length and instead engage in case-specific factual analyses for each request.[319] The variation in factual circumstances and workplace conditions that necessitates individualized assessments is precisely what led the EEOC to avoid specifying a reasonable leave time in the PWFA rule.[320] Just as under the ADA, an employer cannot deny leave under the PWFA solely because it exceeds their company leave policy.[321] Indeed, the provision of additional leave for pregnancy, childbirth, and related medical conditions beyond what an employer voluntarily provides—and what the government provides—was a key goal of passing the PWFA.
Conclusion
The PWFA promises to extend crucial protections to millions of American workers by entitling them to reasonable accommodations for their pregnancy, childbirth, and related medical conditions. By incorporating the reasonable accommodation definition from the ADA and new PWFA regulations, the statute invokes a complicated body of caselaw that has limited and confused the meaning of the requirement and that is often in tension with the EEOC’s PWFA rule. This Article exposes these tensions and cautions courts against wholly importing ADA caselaw into the PWFA context, given crucial differences between the two statutes, the EEOC’s position in its PWFA rule, and post-pandemic shifts in workplace norms. This Article offers a template for courts grappling with these conflicting sources and argues that the PWFA will frequently require temporary transfers, remote work, and reasonable leave to ensure pregnant and postpartum workers can stay healthy while earning needed income.
Copyright © 2025 Madeleine Gyory, Associate Professor of Law, Maurice A. Deane School of Law at Hofstra University; J.D., NYU School of Law. For helpful comments and feedback, I am grateful to Matthew Bodie, Cindy Estlund, Brittany Farr, Dallan Flake, Michael Goodyear, Jonathan Harris, Shirley Lin, Deborah Malamud, Nicole Buonocore Porter, Noah A. Rosenblum, Courtlyn Roser-Jones, Adam Samaha, Naomi Schoenbaum, D’Andra Millsap Shu, Sarah Wheeler, and Deborah A. Widiss, as well as participants in the 2024 Cornell Work Law Junior Scholar Workshop, the 2024 Colloquium on Scholarship in Employment and Labor Law, the 2024 Junior Faculty Lightning Round Workshop at The Ohio State University Moritz College of Law, the 2024 NYU Academic Careers Program Scholarship Clinic, and the NYU Lawyering Scholarship Colloquium. Thank you to Sarah Brafman and Chelsea Thompson for practitioner insights. Finally, thank you to Morgan Brandewie, Alexi Comella, Claire Ewing-Nelson, Miranda Finestone, and Isabella Perera for their excellent research assistance, and to the superb editorial team at the California Law Review for their diligent review and edits.
[1]. See Dina Bakst, Elizabeth Gedmark & Sarah Brafman, A Better Balance, Long Overdue: It Is Time for the Federal Pregnant Workers Fairness Act 23 (2019), https://www.abetterbalance.org/wp-content/uploads/2019/05/Long-Overdue.pdf [https://perma.cc/HT55-U74M].
[2]. See H.R. Rep. No. 117-27, pt. 1, at 11 (2021); Press Release, Ctr. for Am. Progress, Nearly Two-Thirds of Mothers Continue to Be Family Breadwinners, Black Mothers Are Far More Likely to Be Breadwinners (May 10, 2019), https://www.americanprogress.org/press/release-nearly-two-thirds-mothers-continue-family-breadwinners-black-mothers-far-likely-breadwinners/ [https://perma.cc/C497-AQDE].
[3]. See Am. Coll. of Obstetricians & Gynecologists Comm., Opinion, Employment Considerations During Pregnancy and the Postpartum Period, 131 Obstetrics & Gynecology e115, e117 (2018), https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-opinion/articles/2018/04/employment-considerations-during-pregnancy.pdf [https://perma.cc/UM3C-978C].
[4]. See id. at e117, e119–20. I sometimes use the terms “women” and “pregnant women” in this Article. Not all people who can get pregnant are women or identify as women, and I do not mean to erase or obscure that reality. However, because pregnancy discrimination is part of a larger historical pattern of sex discrimination based in persistent stereotypes about the role of cisgendered women, I occasionally use that term here.
[5]. See id. at e117.
[6]. See Bakst, Gedmark & Brafman, supra note 1, at 25–26.
[7]. See Pregnant Workers Fairness Act (PWFA), Pub. L. No. 117-328, § 109, 136 Stat. 6084, 6089 (2022) (codified at 42 U.S.C. § 2000gg-1).
[8]. 42 U.S.C. § 2000gg-1(1).
[9]. See Deborah A. Widiss, The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, and Need (Especially in Post-Dobbs America), 27 Emp. Rts. & Emp. Pol’y J. 84, 87 (2024) (noting that the “PWFA provides an explicit clear standard that does not depend on identifying other employees who have received comparable support”); id. at 91–95 (summarizing movement and advocacy efforts to pass federal and state PWFAs).
[10]. See, e.g., As Pregnant Workers Fairness Act Becomes Law Today, Millions of Pregnant and Postpartum Workers Have Gained Crucial Protections for Health & Economic Security, A Better Balance: Blog (June 27, 2023), https://www.abetterbalance.org/as-pregnant-workers-fairness-act-becomes-law-today-millions-of-pregnant-and-postpartum-workers-have-gained-crucial-protections-for-health-economic-security/ [https://perma.cc/E3FK-7Y57] (“At long last, pregnant and postpartum workers in every corner of the country now have a clear right to the accommodations they need to remain healthy and attached to the workforce.”); Jerrold Nadler, The Pregnant Workers Fairness Act is Now the Law of the Land, Congressman Jerry Nadler: Newsroom (July 15, 2023), https://nadler.house.gov/news/documentsingle.aspx?DocumentID=395034 [https://perma.cc/HY2V-9LJV] (“This historic legislation allows pregnant and postpartum workers to get the accommodations they need to have a safe and healthy pregnancy.”).
[11]. See 42 U.S.C. § 12112(b)(5)(A).
[12]. July, the month of the ADA’s passage, continues to be celebrated as Disability Pride Month. See Justice Department’s Civil Rights Division Celebrates Disability Pride Month, U.S. Dep’t of Just.: Archives (July 31, 2024) https://www.justice.gov/archives/opa/blog/justice-departments-civil-rights-division-celebrates-disability-pride-month [https://perma.cc/EB47-84MQ].
[13]. See, e.g., D’Andra Millsap Shu, Remote Work Disability Accommodations in the Post-Pandemic Workplace: The Need for Evidence-Driven Analysis, 95 Temp. L. Rev. 201, 214 (2023) (“Despite high hopes and zealous advocacy, the ADA’s promise of integrating individuals with disabilities into the workforce has not panned out. Even after significant amendments in 2008 that were intended to expand its impact, the ADA simply has not had a meaningful impact on the employment rate of individuals with disabilities, who are still employed at roughly one-third the rate of their nondisabled peers.” (footnotes omitted)).
[14]. This was because courts found plaintiffs were not sufficiently disabled or they could not “perform the essential functions” of their position. 42 U.S.C. § 12111(8) (defining “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”); id. § 12102 (defining “disability” under the ADA); see Nicole Buonocore Porter, A New Look at the ADA’s Undue Hardship Defense, 84 Mo. L. Rev. 121, 122 (2019); Ruth Colker, The Disability Pendulum: The First Decade of the Americans with Disabilities Act 96–104 (2005); Joan C. Williams, Robin Devaux, Danielle Fuschetti & Carolyn Salmon, A Sip of Cool Water: Pregnancy Accommodation After the ADA Amendments Act, 32 Yale L. & Pol’y Rev. 97, 111 (2013) (“By 2006, defendants were winning ninety-seven percent of all ADA cases resolved in court, most of which turned on whether the plaintiff (whether pregnant or not) was entitled to protected status.”).
[15]. See 42 U.S.C. §§ 12101, 12112; H.R. Rep. No. 117-27, pt. 1, at 18 (2021) (noting that under the ADA and ADAAA, pregnancy is not considered a disability); Saru M. Matambanadzo, The Fourth Trimester, 48 U. Mich. J.L. Reform 117, 158 (2014) (“Before 2008, courts refused to recognize pregnancy as a disability. Because pregnancy was regarded as a healthy state, neither the Supreme Court, nor the EEOC interpreted the ADA to require employers to make reasonable accommodations for women who faced substantial physical limitations and disabilities during their pregnancies.”); Williams et al., supra note 14, at 110–11 (asserting that ADA courts developed a “pregnancy-contamination doctrine” whereby claims involving pregnancy-related symptoms were thrown out, even though their symptoms would have constituted a disability if they stemmed from any other condition).
[16]. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified at 42 U.S.C. §§ 12101–12213) (containing no amendments to the ADA’s definitions of “reasonable accommodation” or “undue hardship”); see Nicole Buonocore Porter, Accommodating Pregnancy Five Years after Young v. UPS: Where We Are & Where We Should Go, 14 St. Louis U. J. Health L. & Pol’y 73, 78, 113 (2020) (explaining that pregnancy remained largely outside the law’s purview even after the ADAAA’s passage, with courts continuing to dismiss pregnancy-related claims); Matambanadzo, supra note 15, at 160 (noting that despite the ADAAA’s potential to enhance access to pregnancy accommodations, this potential “has not yet materialized” and the Act “has had a limited impact” for pregnant workers).
[17]. See, e.g., Note, Finally Protected: Analyzing the Potential of the Pregnant Workers Fairness Act, 137 Harv. L. Rev. 662, 663 (2023) (noting that while the PWFA is being celebrated, “a curious dissonance exists” in that the ADA, “the statute that the PWFA’s text largely mirrors, has been widely criticized as ineffective for employees and described as one of the least plaintiff-friendly civil rights statutes”).
[18]. See 42 U.S.C. § 2000gg-1(1) (prohibiting employers from denying reasonable accommodations for a qualified employee’s “known limitations” related to “pregnancy, childbirth, or related medical conditions”); id. § 2000gg(4) (defining “known limitation” broadly to mean “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” and explicitly not tied to the ADA’s definition of disability). Individuals can qualify for PWFA coverage even if they need certain essential functions of their job suspended for a temporary period. See id. § 2000gg(6). Together, these changes to the law’s text have significant potential to eliminate barriers that hindered workers’ access to accommodations under the ADA. See Note, supra note 17, at 664 (arguing that “there is good reason to be optimistic about the PWFA, even if it mirrors language from the ADA” in part because “hurdles that workers face under the ADA have . . . been accounted for by small but significant edits to the text of the PWFA’s accommodations provisions”). See infra Part II.B for further discussion.
[19]. 42 U.S.C. § 2000gg(7).
[20]. Id.
[21]. Id. The EEOC issued final PWFA regulations in April 2024. See generally Regulations to Implement the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636). Indeed, courts inclined to ignore the statute’s directive to look to the PWFA regulations for what “reasonable accommodation” means in the context of pregnancy and instead rely solely on the ADA will find scant precedent to guide them, as pregnancy needs have typically been excluded from ADA coverage. See supra notes 15–16 and accompanying text.
[22]. See 42 U.S.C. § 12111(9) (defining reasonable accommodation via example); infra Part I.
[23]. See infra Part I.C; Jeannette Cox, Reasonable Accommodations and the ADA Amendments’ Overlooked Potential, 24 Geo. Mason L. Rev. 147, 174 (2016) (noting that “[c]ourts and commentators disagree about the extent to which myriad factors, such as positive and negative effects on coworkers, should impact the reasonableness inquiry”).
[24]. Mary Crossley, Reasonable Accommodation as Part and Parcel of the Antidiscrimination Project, 35 Rutgers L.J. 861, 864–65 (2004) (noting that “what makes a requested accommodation reasonable . . . remains unsettled and hotly contested”); Nicole Buonocore Porter, Martinizing Title I of the Americans with Disabilities Act, 47 Ga. L. Rev. 527, 543 (2013) (asserting that the issue of “what constitutes a reasonable accommodation . . . . is in a state of chaos”).
[25]. See infra Part I.C.
[26]. See generally 603 U.S. 369 (2024); infra Part II.D.
[27]. See, e.g., Porter, supra note 14, at 134–64; Mark C. Weber, Unreasonable Accommodation and Due Hardship, 62 Fla. L. Rev. 1119, 1152–65 (2010); Hillary K. Valderrama, Comment, Is the ADAAA a “Quick Fix” or Are We out of the Frying Pan and into the Fire?: How Requiring Parties to Participate in the Interactive Process Can Effect Congressional Intent Under the ADAAA, 47 Hou. L. Rev. 175, 205 (2010).
[28]. While I initially chose these three accommodations based on my predictions of which PWFA requests would be most likely to face judicial resistance, PWFA lawsuits involving each of these accommodations have already been filed at the time of this Article’s publication. See Complaint and Jury Trial Demand, EEOC v. Wabash Nat’l Corp., No. 5:24-cv-00148-BJB (W.D. Ky. Sep. 10, 2024) (involving request to transfer to a vacant position during pregnancy); EEOC v. Lago Mar Props., No. 24-CV-61812, 2024 WL 5146189 (S.D. Fla. Oct. 10, 2024) (involving request for leave following stillbirth delivery); Civil Complaint, Ahern v. Allegheny Clinic, No. 2:24-cv-01383 (W.D. Pa. Oct. 2, 2024) (involving request for remote work).
[29]. This argument echoes that of employment lawyers and scholars regarding the future of religious accommodations under Title VII after Groff v. DeJoy, 600 U.S. 447 (2023). Because that decision strengthened the undue hardship standard for Title VII religious accommodations (and thus made it harder for employers to defeat accommodation claims using that defense), scholars predict an increase in litigation over whether plaintiffs’ religious beliefs are “sincerely held”—a heretofore barely litigated provision of the law. See, e.g., John R. FitzGerald, Religious Accommodation for Employees: The Potential Impact and Likely (Unintended) Consequences of SCOTUS’ Groff v. DeJoy Decision, Foley & Lardner LLP: Foley Blogs (July 17, 2023), https://www.foley.com/en/insights/publications/2023/07/religious-accommodation-employees-scotus [https://perma.cc/UWP7-W3UD].
[30]. A wealth of scholarship has critiqued reasonableness standards in the law from feminist, critical race, and queer theory perspectives and demonstrated how such standards purport objectivity while privileging dominant perspectives of those in power. See, e.g., Stephanie M. Wildman, Ending Male Privilege: Beyond the Reasonable Woman, 98 Mich. L. Rev. 1797, 1802–03 (2000) (arguing that a reasonable woman standard should be applied to the conduct of men in certain situations where men’s and women’s life experiences and views on sex and aggression diverge); Haim Abraham, Queering the Reasonable Person, in Diverse Voices in Tort Law 57, 57–59 (Kirsty Horsey ed., 2024) (critiquing the reasonable person standard in tort law from a queer theory perspective); Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. 367, 369–77 (1996) (examining the impact of racial stereotypes on the reasonableness requirement in self-defense doctrine).
[31]. See generally 597 U.S. 215 (2022) (holding that the Constitution does not protect the right to abortion and overturning Roe v. Wade).
[32]. See Deidre McPhillips, Births Have Increased in States with Abortion Bans, Research Finds, CNN (Nov. 21, 2023), https://www.cnn.com/2023/11/21/health/abortion-bans-increase-births/index.html [https://perma.cc/AA97-2NH7] (reporting that nearly a quarter of those seeking abortions were unable to get one due to legal bans that took effect after Dobbs and that birth rates rose in states with abortion bans, leading to about thirty-two thousand more births than expected); Laura T. Kessler, Reproductive Justice at Work: Employment Law After Dobbs v. Jackson Women’s Health Organization, 109 Corn. L. Rev. 1447, 1455 (2024) (noting that post-Dobbs, “we are entering a period where there will be more pregnant workers and more pregnant workers with medical complications caused by a lack of access to reproductive healthcare”); Widiss, supra note 9, at 124–33 (discussing the importance of the PWFA post-Dobbs).
[33]. 42 U.S.C. § 2000gg(7).
[34]. See Lorillard v. Pons, 434 U.S. 575, 581 (1978) (noting that where “Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute”).
[35]. 42 U.S.C. § 2000gg(7).
[36]. Id. § 12101(b)(1). The Act was amended in 2008 via the ADAAA to clarify what qualified as covered disabilities. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified at 42 U.S.C. § 12101–12213).
[37]. 42 U.S.C. § 12112(a).
[38]. Id. § 12112(b)(5)(A).
[39]. Id.
[40]. See Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701–796); 42 U.S.C. § 2000e-2(a)(1); Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995) (discussing the history of the ADA’s reasonable accommodation provision and noting it “is not a legal novelty”); Ruth Colker, The Americans with Disabilities Act’s Unreasonable Focus on the Individual, 170 U. Pa. L. Rev. 1813, 1820 n.40 (2022) (noting that reasonable accommodation concepts “were borrowed from regulations drafted to implement Section 504 of the Rehabilitation Act of 1973”).
[41]. 42 U.S.C. § 12111(10)(A)–(B).
[42]. See H.R. Rep. No. 101-485, pt. 2, at 68 (1990) (noting that “the principles enunciated by the Supreme Court in TWA v. Hardison are not applicable to this legislation” and that a “higher standard is necessary in light of the crucial role that reasonable accommodation plays in ensuring meaningful employment opportunities for people with disabilities” (citation modified)).
[43]. See id. at 67–70.
[44]. See Difficulty, Oxford Eng. Dictionary, https://www.oed.com/dictionary/difficulty_n?tab=meaning_and_use [https://perma.cc/L9CM-PFZ4] (defining “difficulty” as the “quality, fact, or condition of being hard to accomplish or perform; lack of facility or easiness”).
[45]. The EEOC regulations provide an example of an accommodation that may pose an undue hardship for nonfinancial reasons: Someone “with a disabling visual impairment that makes it extremely difficult to see in dim lighting” may request that his employer, a night club, brightly illuminate the club at night. The regulations note that “the nightclub will probably be able to demonstrate that that particular accommodation, though inexpensive, would impose an undue hardship if the bright lighting would destroy the ambience of the nightclub and/or make it difficult for the customers to see the stage show.” 29 C.F.R. app. § 1630.2(p) (2024).
[46]. H.R. Rep. No. 101-485, pt 2, at 69 (providing the example of an employee who uses a wheelchair requesting a ramp and noting the accommodation will benefit that individual employee as well as “mobility-impaired applicants and employees in the future”).
[47]. 42 U.S.C. § 12111(9) (providing examples of potential reasonable accommodations but no statutory definition); see also H.R. Rep. No. 101-485, pt. 2, at 57, 62 (noting that the statutory definition for reasonable accommodation “sets forth examples of types of accommodations” and “is intended to provide general guidance about the nature of the obligation”); Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 480 (7th Cir. 2017) (“The ADA contains a definition of ‘reasonable accommodation,’ but it tells us only what the term may include . . . .”).
[48]. Note, supra note 17, at 675 (asserting that the statutory definition for reasonable accommodation “provides no clear bound on what is or is not reasonable, or even factors to consider in assessing an accommodation for reasonableness” but instead provides only “a short list of accommodations that could be considered reasonable”).
[49]. 42 U.S.C. § 12111(9).
[50]. See, e.g., EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016) (“The ADA provides that, subject to exceptions irrelevant here, an employer must reasonably accommodate a disabled employee. But it does not say how an employer must do that.” (citation omitted)); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 145 (2d Cir. 1995) (Newman, J., concurring) (asserting that the ADA’s definition of reasonable accommodation “provides no guidance as to whether, or to what extent, the cost of [accommodations] are relevant to a determination of their reasonableness” and the provisions “do not provide clear answers to the litigation issues that arise in lawsuits claiming discrimination on the basis of disability”).
[51]. See, e.g., Jeffrey O. Cooper, Comment, Overcoming Barriers to Employment: The Meaning of Reasonable Accommodation and Undue Hardship in the Americans with Disabilities Act, 139 U. Pa. L. Rev. 1423, 1441 (1991) (“Reasonable accommodation is the key concept of the employment provisions of the ADA, and it distinguishes the ADA from other areas of discrimination law. Given the concept’s importance, it is perhaps strange that the statute does not define reasonable accommodation.”); Porter, supra note 24, at 543–44 (arguing that the word “reasonable” is “an ambiguous word with different meanings in different areas of law but no discernible meaning in disability law”).
[52]. H.R. Rep. No. 101-485, pt. 2, at 65–66 (emphasis added).
[53]. Id. at 57.
[54]. See 42 U.S.C. § 12116 (“Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an accessible format to carry out this subchapter in accordance with subchapter II of chapter 5 of title 5.”).
[55]. See generally Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. 35726 (July 26, 1991) (codified as amended at 29 C.F.R. pt. 1630).
[56]. Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended, 76 Fed. Reg. 16978 (Mar. 25, 2011) (codified at 29 C.F.R. pt. 1630).
[57]. See 29 C.F.R. § 1630.2(o)–(p) (2024) (containing nearly the identical language as the 1991 rule aside from updated wording for “qualified individual” to match statutory amendment). The rule did add an additional provision clarifying that individuals who met only the “regarded as” prong of disability qualifications were not entitled to reasonable accommodations. Id. § 1630.2(o)(4).
[58]. Id. § 1630.2(p)(2)(v).
[59]. See id. app. § 1630.2(p) (noting that while the undue hardship standard “takes into account the financial realities of the particular employer . . . the concept of undue hardship is not limited to financial difficulty”).
[60]. Id.
[61]. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, EEOC (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada [https://perma.cc/3BRR-EU6Z] (“Undue hardship refers not only to financial difficulty but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.”).
[62]. 29 C.F.R. § 1630.2(o)(1).
[63]. Id.
[64]. Id. § 1630.2(o)(2)–(3).
[65]. Id. § 1630.2(o)(1). The rule reiterates this in a later provision by noting that individuals are not required to accept accommodations they do not want. But “if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position,” and thus cannot perform such functions, they “will not be considered qualified.” Id. § 1630.9(d) (emphasis added).
[66]. Id. app. § 1630.2(o) (emphasis added).
[67]. See Porter, supra note 14, at 122 (“For many years, most ADA cases were dismissed at the summary judgment stage with courts holding that the plaintiffs did not have a disability and therefore could not proceed with the merits of their cases. As a result, there was not much litigation involving the most important provision of Title I of the ADA—the reasonable accommodation provision and its accompanying defense—the undue hardship defense.”); Cox, supra note 23, at 148 (noting that the scope of the reasonable accommodation provision “remain[ed] unresolved because the first two decades of judicial opinions construing the ADA did not focus on defining” it); 29 C.F.R. app. § 1630.2(j)(1)(iii) (noting that caselaw has “too often turned solely on the question of whether the plaintiff is an individual with a disability rather than the merits of discrimination claims” such as whether “reasonable accommodations were denied”) (quoting 154 Cong. Rec. S8342, S8345 (Sep. 11, 2008) (Statement of the Managers to Accompany S. 3406)).
[68]. See Porter, supra note 14, at 122.
[69]. See id.
[70]. The ADAAA expanded the definition of disability in an effort to ease litigants’ burden of proving they had a qualifying disability. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553; 29 C.F.R. § 1630.1(c)(4) (noting that the definition of “disability” should be “construed broadly in favor of expansive coverage” and the “primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability”). Nevertheless, litigants continue to face barriers to proving they are sufficiently disabled under the law. See Nicole Buonocore Porter, Explaining “Not Disabled” Cases Ten Years After the ADAAA: A Story of Ignorance, Incompetence, and Possibly Animus, 26 Geo. J. on Poverty L. & Pol’y 383, 392–93 (2019) (finding that roughly one fifth of post-ADAAA cases that considered the definition of disability found the plaintiff did not have a qualifying disability); Note, supra note 17, at 674 (noting that even after passage of the ADAAA, the “question of whether someone qualifies for protection under the ADA continues to be one of the main barriers for failure-to-accommodate litigants”).
[71]. See Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 136 (2d Cir. 1995) (“Given the rather obscure regulatory language, it is perhaps not surprising that courts have struggled to give content to the terms reasonable accommodation and undue hardship. It is also not surprising, in view of the lack of any direct statutory guidance, that they have found the assignment of the burdens of production and persuasion particularly difficult as to reasonable accommodation.”); Valderrama, supra note 27, at 184 (noting that litigants have “wide latitude to debate what constitutes a reasonable accommodation” due to vague statutory language and “lack of clear regulatory guidance”).
[72]. I predict these accommodations will pose challenges for PWFA claimants because they often require a greater adjustment of workplace policies or norms than more immediate and inexpensive accommodations, such as permission to carry water or sit down. Indeed, during this Article’s publication process, each of these accommodations has arisen in PWFA litigation. See supra note 28 and accompanying text. In contrast, see infra Part II.C for a discussion of “predictable assessments,” accommodations the EEOC deems will almost always be reasonable and not impose undue hardship.
[73]. 535 U.S. 391 (2002); see Porter, supra note 24, at 538 (“The only Supreme Court case addressing the reasonable accommodation provision is US Airways, Inc. v. Barnett.”). The Supreme Court granted certiorari in one other reasonable accommodation case, Huber v. Wal-Mart Stores, Inc., but dismissed it because the case settled. 486 F.3d 480 (8th Cir. 2007), cert. granted in part, 552 U.S. 1074 (2007), and cert. dismissed, 552 U.S. 1136 (2008); see Porter, supra note 24, at 541.
[74]. See Barnett, 535 U.S. at 391.
[75]. Id. at 394.
[76]. Id.
[77]. Id.
[78]. Id. at 394–95.
[79]. Id. at 394.
[80]. Id. at 394–95.
[81]. Id. at 395–96.
[82]. Id. at 399–400 (citing 29 C.F.R. § 1630(o)(ii) (2001)).
[83]. Id. at 400–01 (“These arguments do not persuade us that Barnett’s legal interpretation of ‘reasonable’ is correct. . . . The EEOC regulations do say that reasonable accommodations ‘enable’ a person with a disability to perform the essential functions of a task. But that phrasing simply emphasizes the statutory provision’s basic objective. The regulations do not say that ‘enable’ and ‘reasonable’ mean the same thing.”); see also Shirley Lin, Bargaining for Integration, 96 N.Y.U. L. Rev. 1826, 1839 n.55 (2021) (noting that Barnett declined to interpret reasonable “to mean effective in evaluating the reasonableness of an accommodation”).
[84]. Barnett, 535 U.S. at 400.
[85]. Id.
[86]. Id.
[87]. Id. at 401–02; see EEOC v. Methodist Hosps. of Dall., 62 F.4th 938, 944 (5th Cir. 2023) (noting that Barnett “set out a two-step test for determining whether an accommodation is reasonable”).
[88]. Barnett, 535 U.S. at 401.
[89]. Id. at 402.
[90]. See id. at 403.
[91]. Id. at 404.
[92]. Id. at 405.
[93]. See, e.g., Medrano v. City of San Antonio, 179 F. App’x 897, 903–04 (5th Cir. 2006) (following Barnett to hold that an employer need not demonstrate on a case-by-case basis that its seniority system should prevail over an otherwise reasonable accommodation); Dunderdale v. United Airlines, Inc., 807 F.3d 849, 855 (7th Cir. 2015) (applying Barnett and holding it would be unreasonable to compel the employer to reassign disabled workers rather than adhere to its seniority system); see also Porter, supra note 24, at 539 (“Balancing the interests of employees with disabilities and their coworkers, the [Barnett] Court held that the rights of nondisabled employees under a seniority system ordinarily should trump a disabled employee’s right to a reasonable accommodation.”). Some scholars have been critical of Barnett’s reasoning and outcome, characterizing the decision as hostile toward low-level employees who assert accommodation rights. See, e.g., Colker, supra note 40, at 1827 (writing that Barnett “reinforces the message that low-level employees will rarely win in reasonable accommodation cases”).
[94]. See Nicole Buonocore Porter, Mixed Signals: What Can We Expect from the Supreme Court in This Post-ADA Amendments Act Era, 35 Touro L. Rev. 435, 441 (2019) (noting that “there is a current circuit split regarding whether an employer must offer reassignment as a reasonable accommodation to an employee with a disability if there are other, more qualified employees who also applied for the job”).
[95]. See Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007); EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016); Elledge v. Lowe’s Home Ctrs., LLC, 979 F.3d 1004 (4th Cir. 2020); EEOC v. Methodist Hosps. of Dall., 62 F.4th 938 (5th Cir. 2023).
[96]. 979 F.3d at 1015.
[97]. Id. at 1016.
[98]. Id. at 1014 (asserting that employers’ hiring discretion “is what makes it possible for the employer to discharge its responsibility to promote workplace stability,” “deemphasizing reassignment helps preserve a fair balance in the relationship between a disabled employee and his colleagues,” and morale is “well-served” by “[h]olding reassignment in reserve for unusual circumstances”).
[99]. Id. at 1016.
[100]. Id. (“The hiring policy at issue here, which builds a succession system within a best-qualified system, falls even more squarely within the ambit of Barnett.”).
[101]. See generally Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999); Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018); EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998).
[102]. See Aka, 156 F.3d at 1304–05; Smith, 180 F.3d at 1164–65.
[103]. Aka, 156 F.3d at 1304.
[104]. Smith, 180 F.3d at 1164–65 (citing Aka, 156 F.3d at 1304). The Tenth Circuit revisited the question post-Barnett and affirmed its prior position. See Lincoln, 900 F.3d at 1204 (“Appellants, as well as the EEOC, argue that Barnett created a limited exception to an employee’s ability to rely on reassignment to a vacant position where reassignment would conflict with an established seniority system but that Barnett’s general discussion of reassignment as a reasonable accommodation strengthens our decision in Smith. We agree with Appellants and the EEOC that Smith and Barnett are in harmony, and we apply them accordingly.”).
[105]. See 227 F.3d 1024 (7th Cir. 2000), overruled by United Airlines, Inc., 693 F.3d 760.
[106]. 693 F.3d at 763–65 (emphasizing that the Barnett Court had found that enforcing a “neutral rule” was not sufficient on its own to absolve employers from their accommodation obligations).
[107]. Id. at 764. The Seventh Circuit held that “the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” Id. at 761. As to the question of whether mandatory reassignment was indeed reasonable in the run of cases, the court remanded to the district court. Id. United Airlines appealed to the Supreme Court, but the Court denied certiorari. Petition for a Writ of Certiorari at i–ii, United Airlines, Inc. v. EEOC, 569 U.S. 1004 (2013) (No. 12-707); United Airlines, 569 U.S. at 1004 (denying cert). The district court did not rule on the remaining question because the parties settled. See EEOC v. United Airlines, Inc., No. 10-CV-01699 HDL, 2015 WL 3737201 (N.D. Ill. June 8, 2015) (settling all claims via consent decree).
[108]. United Airlines, 693 F.3d at 764–65; see Porter, supra note 94, at 442 (“[U]nder a most-qualified policy, employees do not have an expectation of being placed in the position, because those decisions are discretionary unlike the mostly mechanical seniority system decisions.”).
[109]. See Shu, supra note 13, at 216–17.
[110]. Work at Home/Telework as a Reasonable Accommodation, U.S. EEOC (Feb. 3, 2003), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation [https://perma.cc/55B8-EAU3].
[111]. Id. (“The contents of this document do not have the force and effect of law and are not meant to bind the public in any way.”); see Shu, supra note 13, at 217–18.
[112]. 44 F.3d 538 (7th Cir. 1995).
[113]. Id. at 543–44.
[114]. Id. at 544–45.
[115]. See id. at 542 (“The plaintiff . . . argues in effect that [reasonable] just means apt or efficacious.”). Vande Zande argued that if her employer had provided a desktop computer for her to work remotely, she would have been able to perform more work and would not have had to use up sick time while recovering from ulcers. Id. at 544.
[116]. Id.
[117]. Id.
[118]. See Arlene S. Kanter, Remote Work and the Future of Disability Accommodations, 107 Corn. L. Rev. 1927, 1951 (2022).
[119]. See Shu, supra note 13, at 220 (“It is hard to overstate Vande Zande’s impact. Most courts upholding employers’ denial of remote work accommodations have relied on Vande Zande.”); Stacy A. Hickox & Chenwei Liao, Remote Work as an Accommodation for Employees with Disabilities, 38 Hofstra Lab. & Emp. L.J. 25, 42 (2020) (noting that over “the past twenty five years, numerous ADA decisions have relied on this court’s reasoning to support employers’ denials of remote work as an accommodation”).
[120]. See, e.g., Valdez v. McGill, 462 F. App’x 814, 817 (10th Cir. 2012) (noting that “for most jobs, ‘physical attendance in the workplace is itself an essential function’” (quoting Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004))); EEOC v. Ford Motor Co., 782 F.3d 753, 762–65 (6th Cir. 2015) (holding that common sense dictated that physical presence at work was an essential function “of most jobs” despite the prevalence of communication technologies and asserting that “technology has not changed” sufficiently to alter the judicial presumption against remote work); see also Nicole Buonocore Porter, Subordination Through Schedules, 55 Ariz. St. L.J. 1293, 1297–98 (2023) (noting that while employers’ formal legal arguments were “that in-person presence was an essential function of the job,” practically speaking “the problem was that employers could not imagine how working from home could work”); cf. Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 608 (6th Cir. 2018) (upholding trial court’s ruling for plaintiff who was denied remote work accommodation); Credeur v. Louisiana, 860 F.3d 785, 793 (5th Cir. 2017) (affirming summary judgment for employer and noting that “there is general consensus among courts, including ours, that regular work-site attendance is an essential function of most jobs”); Whitaker v. Wis. Dep’t of Health Servs., 849 F.3d 681, 684 (7th Cir. 2017) (“For purposes of the Americans with Disabilities Act and the Rehabilitation Act, regular attendance is an essential function of many jobs.”).
[121]. Kanter, supra note 118, at 1936.
[122]. Id. at 1954, 1959 n.105 (examining more than two dozen federal appellate court decisions over the past decade); see also Katie Deutsch, Comment, The Future of Teleworking Accommodations Under the ADA Post-COVID-19, 70 Kan. L. Rev. 105, 113 (2021) (noting that most courts to consider the question reject remote work requests as unreasonable); Shu, supra note 13, at 218 (“When employees challenge employers’ denials of remote work accommodations in court, the employees lose overwhelmingly.”); Hickox & Liao, supra note 119, at 28, 85 (studying 125 federal court claims from 1995 to 2020 and finding “that despite the increasing popularity of remote work at the workplace and the ADA’s requirement for employers to provide reasonable accommodations, employees with disabilities still face a difficult time in obtaining remote work arrangements”).
[123]. 782 F.3d at 757–58, 762–63, 765, 770.
[124]. 883 F.3d at 604–05, 608 (distinguishing Ford by emphasizing that the plaintiff in Ford “had an extensive history of poor performance and high absenteeism” while “Mosby-Meachem had performed her duties remotely in the past without any attendance issues or decline in work product” and Mosby-Meachem’s request was for a ten week period, while the plaintiff in Ford had “sought to work off-site up to four days a week indefinitely and on an indeterminate schedule” (citing Ford, 782 F.3d at 758–60)).
[125]. See Madeleine Gyory, Legislating Flexibility in the Post-Pandemic Workplace, 69 Vill. L. Rev. 209, 222–25 (2024); Shu, supra note 13, at 233–40.
[126]. See, e.g., Shu, supra note 13, at 240–43; Michelle A. Travis, A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility, 64 Wash. U. J.L. & Pol’y 203, 204–05 (2021); Hickox & Liao, supra note 119, at 65–66; see also Kanter, supra note 118, at 1992–2000 (calling on the EEOC to update its ADA employment regulations to clarify that disabled workers “have a right to work remotely as a reasonable accommodation in appropriate cases, especially since so many workers had already performed their jobs remotely during the pandemic”).
[127]. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EEOC, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [https://perma.cc/FZV9-BW3F].
[128]. Id.
[129]. Id.
[130]. See Robert Iafolla, Covid’s Remote Work Experience Is Slowly Changing Disability Law, Bloomberg L.: Daily Lab. Rep. (July 6, 2023) [hereinafter Iafolla, Covid’s Remote Work Experience], https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X78MH0PG000000?bna_news_filter=daily-labor-report [https://perma.cc/F4XF-S58D]; Robert Iafolla, Work at Home Gets Skeptical Eye from Courts as Disability Issue, Bloomberg L.: Daily Lab. Rep. (Feb. 21, 2019) [hereinafter Iafolla, Work at Home Gets Skeptical Eye], https://news.bloomberglaw.com/daily-labor-report/work-at-home-gets-skeptical-eye-from-courts-as-disability-issue [https://perma.cc/CEL6-3TNW].
[131]. See Iafolla, Covid’s Remote Work Experience, supra note 130 (finding that judges mentioned “Covid” or “pandemic” in roughly one third of the remote work decisions between 2021 and 2023); Shu, supra note 13, at 244–45 (finding that judges did not acknowledge the impacts of the pandemic in remote work decisions between April 2020 and December 2022); see also Smithson v. Austin, 86 F.4th 815, 822 (7th Cir. 2023) (noting that while “we have held that working at home is not a reasonable accommodation as a general matter,” the COVID-19 pandemic “led to developments in work-from-home technologies that change the calculus” and asserting that “we must now assess whether in-person attendance is essential on a context-specific basis”).
[132]. See Long-Term Leave and the ADA After Severson, Job Accommodation Network, https://askjan.org/articles/Long-Term-Leave-and-the-ADA-after-Severson.cfm [https://perma.cc/SQP8-ZFWC] (“There is no pre-determined duration of leave time that is required to be granted under the ADA because the ADA is not a leave law.”); Family and Medical Leave Act (FMLA) of 1933, 29 U.S.C. § 2612(c) (providing right to unpaid leave for qualifying workers).
[133]. To be eligible for FMLA leave, workers must have been employed by their current employer for at least twelve months, have worked at least 1,250 hours for that employer in the past twelve months, and their employer must have fifty or more employees within a seventy-five-mile radius of the employee’s worksite. 29 U.S.C. § 2611(2). By contrast, the ADA covers workers whose employer has fifteen or more employees, with no minimum hours or time worked requirement. 42 U.S.C. § 12111(5)(A). The FMLA provides up to twelve weeks of unpaid medical leave to qualifying workers, but workers may need more than twelve weeks of leave as an accommodation under the ADA. 29 U.S.C. § 2612(a)(1); see, e.g., Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 478 (7th Cir. 2017) (involving plaintiff who needed additional leave after his FMLA leave ran out).
[134]. See Leave & Undue Hardship Under the ADA, Job Accommodation Network, https://askjan.org/publications/consultants-corner/Leave-Undue-Hardship-Under-the-ADA.cfm [https://perma.cc/QDT3-ZSVQ] (noting that JAN “receives daily questions about leave and the ADA,” as “[l]eave can be a complex ADA accommodation to implement because the ADA does not outline leave eligibility requirements or a specified frequency or duration of leave that must be granted,” which leaves many employers “struggling to determine what is reasonable”).
[135]. See, e.g., Robert v. Bd. of Cnty. Comm’rs of Brown Cnty., 691 F.3d 1211, 1218 (10th Cir. 2012) (noting that for a leave of absence to be reasonable, “[t]he employee must provide the employer an estimated date when she can resume her essential duties,” otherwise “an employer is unable to determine whether the temporary exemption is a reasonable one”); Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 394 (6th Cir. 2017) (“An employer is not required to keep an employee’s job open indefinitely.”).
[136]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29117 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636) (noting that “courts’ definitions of how long a period of leave may be under the ADA and still be a reasonable accommodation (thus, allowing the individual to remain qualified) vary”); see, e.g., García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000) (“These are difficult, fact intensive, case-by-case analyses, ill-served by per se rules or stereotypes.”).
[137]. See García-Ayala, 212 F.3d at 647–48 (rejecting district court’s acceptance of employer’s per se rules on how long plaintiff’s leave could extend without factual analysis of plaintiff’s job, condition, and hardship on the business); Cleveland v. Fed. Express Corp., 83 F. App’x 74, 78 (6th Cir. 2003) (noting that “this Court has declined to adopt a bright-line rule defining a maximum duration of leave that can constitute a reasonable accommodation”); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (“Determining whether a proposed accommodation (medical leave in this case) is reasonable, including whether it imposes an undue hardship on the employer, requires a fact-specific, individualized inquiry.”).
[138]. Employer-Provided Leave and the Americans with Disabilities Act, U.S. EEOC (May 9, 2016), https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act [https://perma.cc/P3LU-RKAH].
[139]. Id.
[140]. 212 F.3d at 647.
[141]. Id. at 647–48.
[142]. Id. at 649. Indeed, the First Circuit reached a different outcome in a case where plaintiff was a teacher who requested an additional three to six months of leave after surgery, as “the context of teaching and related responsibilities of a school” meant that “other considerations are in play” and the employer demonstrated it was unable to fill plaintiff’s role with substitute teachers. Sarkisian v. Austin Preparatory Sch., 85 F.4th 670, 675–77 (1st Cir. 2023).
[143]. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 480 (7th Cir. 2017); Hwang v. Kan. State Univ., 753 F.3d 1159, 1161–62 (10th Cir. 2014). The Eighth Circuit articulated a similar position in 2003, asserting that leave was not reasonable because “[a]ttendance at work is a necessary job function,” but the statement was dicta, mentioned in a footnote, and the case was decided on other grounds. Epps v. City of Pine Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003).
[144]. 872 F.3d at 480.
[145]. Id. at 479–80.
[146]. Id. at 482 (asserting that Barnett stands for the principle that “effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA”).
[147]. Id. at 481.
[148]. Id. at 479–81.
[149]. See Hwang v. Kan. State Univ., 753 F.3d 1159, 1161–62 (10th Cir. 2014). This case was brought under the Rehabilitation Act, which prohibits employment discrimination against individuals with disabilities employed by the federal government or who receive certain federal subsidies and which courts generally interpret consistently with the ADA. See Porter, supra note 94, at 446; Smithson v. Austin, 86 F.4th 815, 820 (7th Cir. 2023) (“The standards for the Rehabilitation Act are the same as those employed for the Americans with Disabilities Act of 1990 . . . and so we rely on case law applicable to either statute.”). For a critique of the Hwang decision and Justice Gorsuch’s disability-related decisions while on the Tenth Circuit, see Porter, supra note 94, at 444–50 (reviewing Justice Gorsuch’s employment disability decisions during his tenure on the Tenth Circuit and noting, “I was unable to find any disability-related opinions that then-Judge Gorsuch authored that were decided in the plaintiff’s favor”).
[150]. 27 F.4th 1221, 1229 (6th Cir. 2022).
[151]. See id.
[152]. Id. The Ninth Circuit agrees. Because “an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation,” a plaintiff’s “inability to work during the leave period would not automatically render her unqualified.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999).
[153]. See, e.g., 603 U.S. 369 (2024).
[154]. See generally Worklife L., Pregnancy, Childbirth, and Related Medical Conditions: Common Workplace Limitations and Reasonable Accommodations Explained, https://pregnantatwork.org/wp-content/uploads/Workable-Accommodation-Ideas.pdf [https://perma.cc/3K8V-EUX3] (explaining the need for accommodations related to pregnancy and childbirth and providing examples).
[155]. Id. at 2; Widiss, supra note 9, at 86.
[156]. See Widiss, supra note 9, at 90 (noting that 40 percent of low-wage workers working full time do not have control over when to take breaks).
[157]. See id. at 86. The most common accommodation sought by pregnant workers is permission to take extra bathroom breaks. Id. at 90.
[158]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29168 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636) (noting that higher-earning workers “are much more likely to be able to control their schedules, take bathroom breaks, or eat, drink water, or telework when necessary,” while those in lower-wage jobs “are much less likely to be able to organize their schedules to allow them to take breaks that may be necessary due to pregnancy, childbirth, or related medical conditions,” and noting that “[n]early one-third of Black and Latina workers are in low-wage jobs, the types of jobs that are less likely to currently provide accommodations”).
[159]. See Note, supra note 17, at 680–81 (“One of the driving motivations behind passing the PWFA was to protect low-wage pregnant workers, who have little autonomy at work and for whom even simple adjustments like bathroom breaks are difficult to individually secure.”).
[160]. Prior to the PWFA’s enactment, the American College of Obstetricians and Gynecologists found that roughly 250,000 pregnant workers were denied accommodations each year. Id.; Widiss, supra note 9, at 89–90.
[161]. See Lucinda M. Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 Colum. L. Rev. 1118, 1123 (1986).
[162]. See id.
[163]. See id.
[164]. See id. at 1122, 1127 (arguing that “the structure of the workplace demonstrates the ways in which employers still remain tied to the notion that the typical worker is someone—a man—who does not have to worry about bearing or rearing children or nurturing other dependents”).
[165]. 42 U.S.C. § 2000e-2(a).
[166]. 429 U.S. 125, 127 (1976) (involving a pregnancy discrimination claim under Title VII); 417 U.S. 484, 492 (1974) (involving a pregnancy discrimination claim under the Equal Protection Clause of the Fourteenth Amendment).
[167]. Gilbert, 429 U.S. at 138, 145–46; Geduldig, 417 U.S. at 496–97.
[168]. Geduldig, 417 U.S. at 496 n.20; Gilbert, 429 U.S. at 135–36.
[169]. Geduldig, 417 U.S. at 494, 496 n.20; Gilbert, 429 U.S. at 135–36.
[170]. See Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k)); see also Madeleine Gyory, Medical Condition or Childcare Choice? Breastfeeding and Lactation Discrimination After Young v. UPS, 43 N.Y.U. Rev. L. & Soc. Change 475, 481–86 (2019) (discussing the history of the PDA and its response to these Supreme Court decisions).
[171]. 42 U.S.C. § 2000e(k) (requiring that “women affected by pregnancy, childbirth, or related medical conditions” be treated “the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work”).
[172]. H.R. Rep. No. 95-948, at 4 (1978); S. Rep. No. 95-331, at 3 (1977).
[173]. 42 U.S.C. § 2000e(k).
[174]. See Gyory, supra note 170, at 486–87 (asserting that under the PDA, “the only way for courts to determine whether a pregnant worker is entitled to the accommodation she seeks is to find a group of similarly situated non-pregnant workers against which to measure her employer’s response”).
[175]. See, e.g., Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015); H.R. Rep. No. 117-27, pt. 1, at 12 (2021) (calling the PDA’s comparator requirement “a burdensome and often impossible standard to meet”).
[176]. See Gyory, supra note 125, at 227–28; Phoebe Taubman, A Better Balance, Testimony Before the New York City Council Civil Rights Committee Regarding Int. 0863-2012, at 3 (2023), https://legistar.council.nyc.gov/View.ashx?M=F&ID=2764747&GUID=D6BDB126-BB5D-4275-A193-3CBC82EE8D7E [https://perma.cc/EJC5-QUNP] (discussing difficulty of locating comparators when workers lack access to information about coworkers).
[177]. See 575 U.S. at 219–23 (addressing the question of who counts as a comparator under the PDA); Note, supra note 17, at 667 (noting that courts have been “unforgiving” on the issue of who counts as a comparator under the PDA and that the comparator issue continued to be difficult for plaintiffs even after Young v. UPS); Lin, supra note 83, at 1872 (noting that the “logical extension of Young’s holding is that detecting sex-based discrimination could remain largely contingent upon others’ abilities to achieve structural justice first”).
[178]. See Bakst, Gedmark & Brafman, supra note 1, at 9.
[179]. See 42 U.S.C. §§ 12101, 12112; H.R. Rep. No. 117-27, pt. 1, at 18–19 (noting that under the ADA and ADAAA, pregnancy itself is not considered a disability); Williams et al., supra note 14, at 108–11 (discussing judicially imposed barriers to inclusion of pregnancy under the ADA).
[180]. See Porter, supra note 16, at 78, 107 (noting that “under the original ADA, courts did not often consider pregnancy to be a disability” and even after the ADAAA was passed, claims continue to “fail in cases where the pregnant employee is not currently experiencing any complications from the pregnancy”). Many courts have continued to find that the ADA as amended by the ADAAA does not apply to pregnancy, even where pregnancy has caused serious medical complications. See H.R. Rep. No. 117-27, pt. 1, at 18–21.
[181]. See Widiss, supra note 9, at 91 (noting that “many claims fell between the cracks of these laws, and both employers and employees were confused about when accommodations were required”); H.R. Rep. No. 117-27, pt. 1, at 11 (“The PWFA eliminates a lack of clarity in the current legal framework that has frustrated pregnant workers’ legal rights to reasonable accommodations while providing clear guidance to both workers and employers.”).
[182]. See H.R. Rep. No. 117-27, pt. 1, at 5 (“Yet nearly 43 years after its passage, federal law still falls short of guaranteeing that all pregnant workers have reasonable workplace accommodations. H.R. 1065, the Pregnant Workers Fairness Act, ensures that pregnant workers who work for employers with 15 or more employees have access to reasonable accommodations in the workplace for pregnancy, childbirth, and related medical conditions.”).
[183]. See A Better Balance, Winning the Pregnant Workers Fairness Act 88–98 (2023), https://www.abetterbalance.org/wp-content/uploads/2023/05/ABB-Winning-PFWA-RD7-2.pdf [https://perma.cc/3NG7-NRY5]; Deborah A. Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, 22 Nev. L.J. 1131, 1143–49 (2022) (summarizing PWFA movement and advocacy efforts). State and local PWFAs were largely bipartisan efforts and rates of pregnancy discrimination claims decreased in states that passed PWFAs. Widiss, supra note 9, at 120–21.
[184]. H.R. Rep. No. 117-27, pt. 1, at 31.
[185]. Id. at 8; Pregnant Workers Fairness Act, H.R. 5647, 112th Cong. (2012).
[186]. Pregnant Workers Fairness Act (PWFA), Pub. L. No. 117-328, § 109, 136 Stat. 6084, 6089 (2022) (codified at 42 U.S.C. § 2000gg-1). In February 2023, the state of Texas sued to enjoin enforcement of the PWFA, arguing that Congress violated the Constitution’s quorum clause by passing the law under proxy rules adopted during the COVID-19 pandemic. A federal judge in Texas agreed with the state and enjoined the PWFA as to Texas state employees, though not to private employers in the state. Texas v. Garland, 719 F. Supp. 3d. 521, 537, 558, 599 (N.D. Tex. 2024); Amanda Brown & Heather Raun, Texas Federal Court Blocks Enforcement of Pregnant Workers Fairness Act, Reed Smith: Emp. L. Watch (Apr. 8, 2024), https://www.employmentlawwatch.com/2024/04/articles/employment-us/texas-federal-court-blocks-enforcement-of-pregnant-workers-fairness-act/ [https://perma.cc/4E6W-SUH5]. The EEOC appealed the decision to the Fifth Circuit, which heard oral arguments in February 2025. Texas v. Bondi, No. 24-10386 (5th Cir. argued Feb. 25, 2025); Vin Gurrieri, 5th Circ. Eyes Congress’ Quorum as Texas Fights PWFA, Law360 (Feb. 25, 2025), https://www.law360.com/employment-authority/articles/2292238/5th-circ-eyes-congress-quorum-as-texas-fights-pwfa [https://perma.cc/Q2MP-BMPN].
[187]. 42 U.S.C. § 2000gg-1(1). The PWFA applies to all private employers who have fifteen or more employees and to government employers. Id. § 2000gg(2)–(3).
[188]. Id. § 2000gg(7).
[189]. See Lorillard v. Pons, 434 U.S. 575, 578 (1978) (evaluating statutory text of the Age Discrimination in Employment Act and highlighting the importance of its departures from existing law, noting it “is something of a hybrid, reflecting, on the one hand, Congress’ desire to use an existing statutory scheme and a bureaucracy with which employers and employees would be familiar and, on the other hand, its dissatisfaction with some elements of each of the pre-existing schemes”).
[190]. 42 U.S.C. § 2000gg(4), (6); see Widiss, supra note 9, at 96 (noting that while the PWFA “borrows from the ADA and the PDA” in significant ways, “there are also some key textual differences that are important to emphasize”). Another key difference between the laws is the “[p]redictable assessments[]” provided in the EEOC’s PWFA rule. 29 C.F.R. § 1636.3(j)(4) (2024). Because this difference is regulatory, I discuss it in the next Section.
[191]. 42 U.S.C. § 2000gg(4) (providing that “the term ‘known limitation’ means physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions . . . whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act of 1990” (emphasis added)); see Widiss, supra note 9, at 101 (noting this distinction and asserting that “it would clearly be improper for an employer or a court to conclude that PWFA does not apply simply because a condition does not meet the ADA standard”).
[192]. 42 U.S.C. § 2000gg(4).
[193]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29169 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636) (noting that “[t]o the extent that litigation remains unavoidable in certain circumstances, the PWFA and the rule are expected to eliminate the need to litigate whether the condition in question is a ‘disability’ under the ADA”); H.R. Rep. No. 117-27, pt. 1, at 27 (2021) (emphasizing that “[i]mportantly, PWFA does not import the ADA’s definition of disability”). Litigation disputing workers’ disability status tied up accommodation claims for decades. See supra notes 13–16 and 70 and accompanying text.
[194]. 42 U.S.C. § 12111(8). As a result, much litigation under the ADA focuses on whether plaintiffs are capable of performing a job’s essential functions, even with the accommodation they desire. Employers frequently argue that workers are unable to perform such functions, even when accommodated, and that the employees are therefore not qualified. See id. § 2000gg(6); supra notes 13–16 and accompanying text.
[195]. 42 U.S.C. § 2000gg(6).
[196]. Id.; see Widiss, supra note 9, at 100 (noting the ADA’s definition and emphasizing that the “PWFA includes an important limitation on that language not found in the ADA”); Kessler, supra note 32, at 1457 (noting that several provisions of the PWFA “are significantly broader than the ADA and PDA, including definitions of who is a qualified employee”).
[197]. H.R. Rep. No. 117-27, pt. 1, at 27–28.
[198]. 42 U.S.C. § 2000gg-3(a) (“Not later than 1 year after December 29, 2022, the Commission shall issue regulations in an accessible format in accordance with subchapter II of chapter 5 of Title 5 to carry out this chapter. Such regulations shall provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.”).
[199]. Id.
[200]. Press Release, EEOC, EEOC Issues Final Regulation on Pregnant Workers Fairness Act (Apr. 15, 2024), https://www.eeoc.gov/newsroom/eeoc-issues-final-regulation-pregnant-workers-fairness-act [https://perma.cc/6P2G-EQV2]; What You Should Know About the Pregnant Workers Fairness Act, U.S. EEOC, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act [https://perma.cc/DQS9-LEQC].
[201]. 29 C.F.R. § 1636.3(h) (2024).
[202]. Id.
[203]. Id. § 1636.3(h)(1)(iv).
[204]. Id. § 1636.3(i)(2).
[205]. Id. § 1636.3(j)(4). The ADA regulations also use the phrase “predictable assessments,” but do so in the context of establishing which impairments will typically constitute a disability under the law. Id. § 1630.2(j)(3). In contrast, “[a]s used in this PWFA rule, however, the term relates to accommodations, not limitations or disabilities.” Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29206 n.118 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636).
[206]. 29 C.F.R. § 1636.3(j)(4).
[207]. Id. § 1636.3(j)(4)(i)–(iv).
[208]. Id. § 1636.3(j)(4).
[209]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29206.
[210]. Id. at 29206.
[211]. 29 C.F.R. § 1636.3(f)(2)(i)–(ii).
[212]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29125.
[213]. Id. at 29154.
[214]. Id.
[215]. Id. at 29125.
[216]. Id. at 29126. For an in-depth discussion of the complex interplay between disabled workers and the actions (or inactions) of their coworkers as reasonable accommodations, see Doron Dorfman, Third Party Accommodations, 124 Mich. L. Rev. (forthcoming 2025) (on file with author).
[217]. 535 U.S. 391, 403 (2002); see supra Part I.C.1 for a discussion of Barnett and the resulting circuit split.
[218]. 29 C.F.R. § 1636.3(i)(2) (2024) (“Reasonable accommodation may include, but is not limited to . . . reassignment to a vacant position . . . .”); 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2) (2024).
[219]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29202.
[220]. Id.
[221]. Id.
[222]. Id.
[223]. Id.
[224]. 29 C.F.R. § 1636.3(i)(2) (2024).
[225]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29201.
[226]. See id. at 29133 n.184 (declining to extend the agency’s presumption against requiring documentation to “flexible scheduling or remote work for nausea or bleeding”); id. at 29134 (noting that “if a lactating employee requests full-time remote work due to a condition that makes pumping difficult, it may be reasonable for the covered entity to seek reasonable documentation about the limitation and need for remote work”).
[227]. See 29 C.F.R. § 1630.2(o)(2) (2024). A subsequent guidance document issued by the EEOC in 2003 addressed remote work and outlined how employers should approach remote work requests, but it was not binding, and courts largely ignored it. Work at Home/Telework as a Reasonable Accommodation, supra note 110 (“The contents of this document do not have the force and effect of law and are not meant to bind the public in any way.”); see supra Part I.C.2 (explaining limiting and non-binding EEOC guidance).
[228]. See supra Part I.C.2 for a discussion of remote work accommodations under the ADA.
[229]. See 29 C.F.R. § 1636.3(i)(2) (“Reasonable accommodation may include, but is not limited to . . . permitting the use of paid leave (whether accrued, as part of a short-term disability program, or any other employer benefit) or providing unpaid leave . . . .”).
[230]. See id. § 1636.3(i)(3); Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29104 (“The PWFA, like the ADA, does not require that leave as an accommodation be paid leave, so leave will be unpaid unless the employer’s policies provide otherwise.”); id. at 29199 (“An employer is not required to provide additional paid leave under the PWFA beyond the amount provided to similarly situated employees.”). Employers must allow employees to choose between paid and unpaid leave on the same basis that other employees can choose among leave types and must continue to provide health insurance coverage to workers on PWFA leave in the same manner they do for workers on non-PWFA leave. See 29 C.F.R. § 1636.3(i)(3)(i); Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29199.
[231]. See 42 U.S.C. § 2000gg-1(4) (“It shall be an unlawful employment practice for a covered entity to . . . require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided . . ..”); Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29214. This provision reflects the reality that many workers prior to the PWFA were forced to take leave when they became pregnant even when they did not want to, often exhausting their unpaid leave before they could use it for recovery from childbirth. See Widiss, supra note 9, at 110; H.R. Rep. No. 117-27, pt. 1, at 24–26 (2021).
[232]. See Scott Brown, Jane Herr, Radha Roy & Jacob Alex Klerman, Abt Assocs. Inc., Employee and Worksite Perspectives of the FMLA: Who Is Eligible? 1 (2020), https://www.dol.gov/sites/dolgov/files/OASP/evaluation/pdf/WHD_FMLA2018PB1WhoIsEligible_StudyBrief_Aug2020.pdf [https://perma.cc/9JYN-UACA] (reporting that 56 percent of U.S. employees were eligible for FMLA leave in 2018). Ninety percent of American civilian employees received some form of unpaid parental or family leave as a discretionary employment benefit as of March 2023. What Data Does the BLS Publish on Family Leave?, U.S. Bureau of Lab. Stat. (Sep. 21, 2023), https://www.bls.gov/ebs/factsheets/family-leave-benefits-fact-sheet.htm [https://perma.cc/4ZMA-R99L].
[233]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29198 (noting that leave can be a reasonable accommodation under the PWFA “even if the covered entity does not offer leave as an employee benefit, the employee is not eligible for leave under the employer’s leave policy, or the employee has exhausted the leave the covered entity provides as a benefit (including leave exhausted under a workers’ compensation program, the FMLA, or similar State or local laws)”).
[234]. See id.
[235]. See id. For example, in 2025 New York became the first state in the country to require private employers to provide twenty hours of paid leave per year that workers can use for prenatal appointments. N.Y. Lab. L. § 196-b (McKinney 2024); New York State Paid Prenatal Leave, N.Y. State, https://www.ny.gov/programs/new-york-state-paid-prenatal-leave [https://perma.cc/F3L4-Y2KV]. If a covered worker needs more than twenty hours of leave for prenatal appointments, she could request it as an accommodation under the PWFA.
[236]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29122 (noting that the EEOC “received numerous comments on its discussion of leave as a reasonable accommodation, including requests for clarification regarding the purpose and length of leave as a reasonable accommodation”).
[237]. Id. at 29127.
[238]. Id.
[239]. The agency’s explanations indicate concern that any articulation of a leave standard might harm workers whose employers would otherwise be inclined to provide more time off. For example, in explaining why it declined to add a particular number of healthcare appointments to the list of predictable assessments, the EEOC noted that workers’ needs will vary and by specifying a number, the agency might “erroneously imply that additional appointments would necessarily create an undue hardship.” Id. at 29127. In addition, the agency’s reluctance to articulate a standard length of leave may reflect the agency’s caution not to overstep its congressional delegation by wading into the territory of a leave entitlement statute.
[240]. Id. at 29117 n.125 (citing Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017)).
[241]. 872 F.3d at 479–81; see supra Part I.C.3.
[242]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29195 (emphasis added).
[243]. Id. at 29193.
[244]. 42 U.S.C. § 2000gg(6).
[245]. See id. § 12111(8); supra Part II.B.
[246]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29193 n.43.
[247]. See Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
[248]. See id.; Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright, 603 U.S. at 412.
[249]. Chevron, 467 U.S. at 842–43; Loper Bright, 603 U.S. at 397.
[250]. See Chevron, 467 U.S. at 844.
[251]. See Loper Bright, 603 U.S. at 391–96.
[252]. See, e.g., Cass R. Sunstein, The Consequences of Loper Bright 6 (Harvard Pub. L. Working Paper, Paper No. 24-29, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4881501 [https://perma.cc/L5A6-GASU] (quoting the same passage from Loper Bright and writing, “[t]here is a lot there”); Adrian Vermeule, Chevron By Any Other Name, New Digest (June 28, 2024), https://thenewdigest.substack.com/p/chevron-by-any-other-name [https://perma.cc/43Z7-66CQ] (calling this excerpt a “loophole passage” and arguing that it merely relabels Chevron deference as “Loper Bright delegation”).
[253]. Loper Bright, 603 U.S. at 394–95 (citations omitted).
[254]. Id. at 394; see id. at 476 (Kagan, J., dissenting) (noting that “the majority directs courts to comply with the varied ways in which Congress in fact ‘delegates discretionary authority’ to agencies”); Kelly P. Dunbar, Colleen M. Campbell & David M. Levine, The Future of Agency Deference After Loper Bright, Bloomberg L.: Prac. Guidance (Aug. 2024) https://www.bloomberglaw.com/external/document/XCBKJREC000000/litigation-professional-perspective-the-future-of-agency-deferen [https://perma.cc/GRD8-LVKP] (noting that with Chevron overruled, “the challenge will be identifying, presumably on a statute-by-statute basis, when has Congress delegated interpretive authority to agencies” and predicting that “courts will honor express statutory delegations and an agency’s reasonable exercise of discretion within the parameters of that delegation”); Stephanie L. Adler-Paindiris & Patricia Anderson Pryor, Go Fish! U.S. Supreme Court Overturns ‘Chevron Deference’ to Federal Agencies: What It Means for Employers, Jackson Lewis (June 28, 2024), https://www.jacksonlewis.com/insights/go-fish-us-supreme-court-overturns-chevron-deference-federal-agencies-what-it-means-employers [https://perma.cc/24XH-4V6P] (concluding that under Loper Bright, “the essential question for a reviewing court is: ‘Does the statute authorize the challenged agency action?’”).
[255]. 603 U.S. at 395.
[256]. 42 U.S.C. § 2000gg(7) (emphasis added).
[257]. See id.
[258]. See id. § 2000gg-3(a).
[259]. Id. (emphasis added).
[260]. The PWFA spans pages 6084–89 of the 2023 Consolidated Appropriations Act. See generally Pregnant Workers Fairness Act (PWFA), Pub. L. No. 117-328, 136 Stat. 6084 (2022) (codified at 42 U.S.C. § 2000gg-1). While Congress also delegated rulemaking authority to the EEOC in the statutory text of the ADA, that directive was more general and did not identify any specific terms, phrases, or provisions that it particularly wanted the EEOC to clarify. See 42 U.S.C. § 12116 (“Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an accessible format to carry out this subchapter in accordance with subchapter II of chapter 5 of title 5.”).
[261]. See Lorillard v. Pons, 434 U.S. 575, 578 (1978) (emphasizing the importance of courts adhering to Congress’s departures from existing law because they reflect “dissatisfaction with some elements of . . . pre-existing schemes”); Widiss, supra note 9, at 97 (“Thus, Congress has explicitly delegated to the EEOC the authority to provide further clarification as to the meaning of this term as used in PWFA, and its interpretation should receive deference from courts.”). While Professor Widiss’s article was published several months prior to the Loper Bright decision, she emphasized that regardless of the outcome, “courts should give careful consideration to the EEOC’s interpretation” of reasonable accommodation under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Widiss, supra note 9, at 97 n.62; see also Marcy L. Karin & Deborah A. Widiss, Menstruation, Menopause, and the Pregnant Workers Fairness Act, 48 Harv. J.L. & Gender 103, 128–29 (2025) (arguing that the PWFA rule is broadly entitled to Skidmore deference under Loper Bright).
[262]. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024).
[263]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29096 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636); see also Loper Bright, 603 U.S. at 393–94 (highlighting the persuasiveness of agency interpretations issued contemporaneously with statutes (first citing Skidmore, 323 U.S. at 140; and then citing United States v. Am. Trucking Ass’ns, 310 U.S. 534, 549 (1940))).
[264]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29096, 29096–220; Widiss, supra note 9, at 97 n.62 (“The EEOC thoroughly explains the reasoning behind its proposed rules and interpretive guidance, and it has longstanding expertise in implementing related laws.”).
[265]. See, e.g., Rachel Rodman & Alec Albright, U.S. Supreme Court Strikes Down Chevron Doctrine—What You Need to Know, White & Case (July 8, 2024), https://www.whitecase.com/insight-alert/us-supreme-court-strikes-down-chevron-doctrine-what-you-need-know [https://perma.cc/4DTN-9BG6] (noting that the “the Court offered scant guidance to lower courts deciding agency rulemaking challenges in a post-Chevron world”).
[266]. See Tennessee v. EEOC, 737 F. Supp. 3d 685, 692 (E.D. Ark. 2024); Louisiana v. EEOC, 705 F. Supp. 3d 643, 648–49 (W.D. La. 2024); Cath. Benefits Ass’n v. Burrows, 732 F. Supp. 3d 1014, 1021 (D.N.D. 2024); Stanley M. Herzog Found. v. EEOC, No. 4:24-CV-00651-RK, 2025 WL 1734470, at *1 (W.D. Mo. Mar. 18, 2025).
[267]. Most recently, one of these lawsuits resulted in a federal judge vacating the portion of the rule defining “related medical condition” to include certain abortions. Louisiana v. EEOC, No. 2:24-CV-00629, 2025 WL 1462583, at *15–16 (W.D. La. May 21, 2025) (vacating the portion of the PWFA rule that covers “purely elective abortions that are not necessary to treat a medical condition related to pregnancy”). Another resulted in a preliminary injunction blocking the EEOC from enforcing the challenged portion of the rule against the plaintiff employers. Stanley M. Herzog Found., 2025 WL 1734470, at *14–15 (granting preliminary injunction). A third resulted in a permanent injunction. Cath. Benefits Ass’n ex rel. Diocese v. Lucas, No. 1:24-CV-00142, 2025 WL 1144768, at *3–4 (D.N.D. Apr. 15, 2025). A fourth is pending after the Eighth Circuit reversed and remanded a district court’s finding that the plaintiff states lacked standing. Tennessee v. EEOC, 129 F.4th 452, 458 (8th Cir. 2025) (reversing district court decision and finding that plaintiffs had standing). The EEOC’s priorities have also shifted drastically under the Trump Administration, with the agency signaling it is no longer interested in defending the PWFA rule provision involving abortion. See Madeleine Gyory, Reproductive Rights Face Headwinds As EEOC, DOJ Change Tack, Bloomberg L. (Mar. 12, 2025), https://news.bloomberglaw.com/us-law-week/Reproductive-Rights-Face%20Headwinds-As-EEOC,-DOJ-Change-Tack [https://perma.cc/S946-WGAU] (summarizing the EEOC’s policy shifts regarding the PWFA rule under the Trump Administration and warning of the risks to workers’ health if PWFA rights are curtailed).
[268]. See Vin Gurrieri, Chevron’s End May Tilt Challenges to Pregnant Worker Rule, Law360 (July 1, 2024), https://www.law360.com/employment-authority/articles/1852875/chevron-s-end-may-tilt-challenges-to-pregnant-worker-rule [https://perma.cc/AZ7H-NTTL] (discussing the possibility of future challenges to the EEOC’s interpretation of “temporary period” and “in the near future” in the PWFA’s definition of qualified employee); S. Michael Nail & Sarah M. Gable, Merry and (Loper) Bright: Where the Impact of the Supreme Court’s Decision Stands This Holiday Season, Ogletree Deakins (Dec. 18, 2024), https://ogletree.com/insights-resources/blog-posts/merry-and-loper-bright-where-the-impact-of-the-supreme-courts-decision-stands-this-holiday-season/ [https://perma.cc/PXN6-KHXV] (warning that under Loper Bright, “[l]abor and employment law issues that may be vulnerable to attack” include “some accommodation concepts and abortion-related provisions in the Pregnant Workers Fairness Act”).
[269]. The PWFA does not explicitly direct the EEOC to define “related medical conditions” in the way it does for “reasonable accommodation.” See 42 U.S.C. § 2000gg(4), (7); Plaintiff Stanley M. Herzog Foundation’s Suggestions in Support of its Motion for Preliminary Injunction at 22–23, Stanley M. Herzog Found. v. EEOC, 2025 WL 1734470 (No. 4:24-CV-00651-RK) (emphasizing in its motion for preliminary injunction that Congress did not authorize the EEOC to define the term “pregnancy, childbirth, and related medical conditions”).
[270]. See Rodman & Albright, supra note 265 (concluding that “[i]t is unclear the extent to which Loper will impact agency regulations promulgated pursuant to express delegations of authority by Congress”) (citation modified).
[271]. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024).
[272]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29194 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636); see How Your Fetus Grows During Pregnancy, Am. Coll. of Obstetricians & Gynecologists (Jan. 2024), https://www.acog.org/womens-health/faqs/how-your-fetus-grows-during-pregnancy [https://perma.cc/5GB2-GDB6].
[273]. See Postpartum, Cleveland Clinic, https://my.clevelandclinic.org/health/articles/postpartum [https://perma.cc/R8TX-Z38F] (noting that the postpartum period “starts immediately after childbirth and generally lasts six to eight weeks”); Workers Disability Benefits, N.Y. State: Workers’ Comp. Bd., https://www.wcb.ny.gov/content/main/DisabilityBenefits/employee-disability-benefits.jsp [https://perma.cc/Z84D-LDWL] (providing that employees are eligible for disability benefits for six weeks after a vaginal birth or eight weeks after a Caesarian section); Disability Insurance: Maternity and Pregnancy Leave, Guardian, https://www.guardianlife.com/disability-insurance/pregnancy [https://perma.cc/G7QE-7E74].
[274]. See, e.g., Rebecca Cohen, What Happens After a Miscarriage? An Ob-Gyn Discusses the Options, Am. Coll. of Obstetricians & Gynecologists (June 2022), https://www.acog.org/womens-health/experts-and-stories/the-latest/what-happens-after-a-miscarriage-an-ob-gyn-discusses-the-options [https://perma.cc/R4WJ-CUCP] (noting that cramping and bleeding from a miscarriage usually stops within a day and light bleeding can continue for four to six weeks); In Vitro Fertilization (IVF), Mayo Clinic (Sep. 1, 2023), https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716 [https://perma.cc/NE6H-ERBX] (noting that an IVF cycle takes about two to three weeks).
[275]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29175.
[276]. 42 U.S.C. § 2000gg(6); see Widiss, supra note 9, at 86 (emphasizing that the PWFA’s definition of “qualified employee” differs from the ADA’s and noting that “[t]his difference is particularly salient, since most of the needs addressed by PWFA will be relatively short in duration”).
[277]. See 42 U.S.C. § 12111(8).
[278]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29118.
[279]. See Pregnant Workers Fairness Act (PWFA), Pub. L. No. 117-328, 136 Stat. 6084 (2022) (codified at 42 U.S.C. § 2000gg-1); H.R. Rep. No. 117-27, pt. 1, at 23 (2021) (“With the COVID-19 pandemic ravaging the country, pregnant workers are in even greater need of reasonable accommodations.”).
[280]. See supra Part I.C.2.
[281]. See Porter, supra note 120, at 1322 (noting that by the time the COVID-19 pandemic emerged, “[m]illions of employees continued to perform their job duties from home” because they were able to “rely[] on existing technology such as Zoom and other online platforms that allow video conferencing” and that “have made both teamwork and remote supervision possible”).
[282]. See Kim Parker, About a Third of U.S. Workers Who Can Work from Home Now Do So All the Time, Pew Rsch. Ctr. (Mar. 30, 2023), https://www.pewresearch.org/short-reads/2023/03/30/about-a-third-of-us-workers-who-can-work-from-home-do-so-all-the-time/ [https://perma.cc/Y8QW-4PVG].
[283]. See id.; Patrick Coate, Remote Work Before, During, and After the Pandemic, Nat’l Council on Comp. Ins., Inc., (Jan. 25, 2021), https://www.ncci.com/SecureDocuments/QEB/QEB_Q4_2020_RemoteWork.html [https://perma.cc/6WUG-S37X].
[284]. See Kanter, supra note 118, at 1982–85 (summarizing this research).
[285]. See Gyory, supra note 125, at 221–22, 264–65; Baruch Silvermann, Does Working from Home Save Companies Money?, Business.com (Nov. 6, 2024), https://www.business.com/articles/working-from-home-save-money/ [https://perma.cc/JBY7-WNDH]; Diane F. Halpern, How Time-Flexible Work Policies Can Reduce Stress, Improve Health, and Save Money, 21 Stress & Health 157, 163 (2005) (finding that access to flexible workplace policies improves employee loyalty, reduces employee stress, and reduces costs to employers from reductions in lateness, missed deadlines, and absenteeism); Porter, supra note 120, at 1323 (“Employees who can telecommute are more satisfied with work and report higher morale.”).
[286]. See 29 C.F.R. § 1636.3(i) (2024).
[287]. Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995). While my reasoning focuses on the PWFA, courts reviewing remote work claims under the ADA should also avoid relying on outdated remote work cases. I echo other scholars who have already made this argument, and I extend it to the PWFA. See sources cited supra note 126; see also Widiss, supra note 9, at 108 (noting that anti–remote work ADA cases should be reevaluated given the COVID-19 pandemic and emphasizing that remote work “can be an important accommodation to consider under PWFA”).
[288]. See 29 C.F.R. § 1636.3(i); supra Parts II.C.2, II.D.
[289]. The first case filed by the EEOC under the PWFA involves just this set of facts. See Complaint and Jury Trial Demand at 5, EEOC v. Wabash Nat’l Corp., 5:24-cv-00148-BJB (W.D. Ky. Sep. 10, 2024).
[290]. See, e.g., Worklife L., supra note 154, at 2–3 (noting that exposure to toxic substances is associated with infertility, miscarriages, and negative birth outcomes, and that temporary transfer may be a helpful accommodation).
[291]. See US Airways, Inc. v. Barnett, 535 U.S. 391, 401–02, 405 (2002).
[292]. See id. at 402.
[293]. In Barnett, the Supreme Court held that when an accommodation conflicts with an employer’s seniority rules, it is typically unreasonable absent special circumstances warranting an exception. Id. at 403. This led to disagreement among courts of appeals over how far to extend Barnett’s reasoning, and whether other hiring and appointment policies should warrant analogous deference. See supra Part I.C.1.
[294]. 535 U.S. at 403.
[295]. See id. at 404 (quoting Brief for Petitioner at 32, Barnett, 535 U.S. 391 (No. 00-1250)).
[296]. See id.
[297]. Id. at 405.
[298]. See Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995); supra Part I.C.2.
[299]. See supra Part I.C.2.
[300]. See Civil Complaint at 2–3, Ahern v. Allegheny Clinic, No. 2:24-cv-01383 (W.D. Pa. Oct. 2, 2024) (PWFA suit filed in October 2024 involving these facts).
[301]. See, e.g., Worklife L., supra note 154, at 10–11 (noting remote work may be a helpful accommodation for various lactation related needs); Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29201 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636) (“Under the PWFA, telework could be used to accommodate, for example, a period of bed rest, a mobility impairment, or a need to avoid heightened health risk, such as from a communicable disease.”).
[302]. See Porter, supra note 120, at 1321–22 (“Obviously, working from home is not possible for millions of jobs, including most jobs in the manufacturing, hospitality, service, and healthcare sectors. It is impossible to manufacture a car, clean a hotel room, cut someone’s hair, or take care of patients in a hospital from home.”).
[303]. The Sixth Circuit recognized this in a pre-PWFA case addressing a temporary remote work accommodation under the ADA. See Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 604–05 (6th Cir. 2018) (affirming jury verdict for plaintiff in part due to the temporariness of plaintiff’s remote work request).
[304]. What You Should Know About COVID-19 and the ADA, supra note 127.
[305]. See 42 U.S.C. §§ 2000gg-1(1), 2000gg(6).
[306]. See supra Parts I.C.2, III.A.
[307]. See Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 573 (7th Cir. 2019).
[308]. See id.
[309]. See supra Part I.C.2.
[310]. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017); Hwang v. Kan. State Univ., 753 F.3d 1159, 1161–62 (10th Cir. 2014); supra Part I.C.3.
[311]. See supra Part I.C.3.
[312]. See 42 U.S.C. § 2000gg(6); supra Part II.B.
[313]. See Worklife L., supra note 154, at 2 (noting that six to eight weeks of leave “for physical recovery” after childbirth is a commonly needed accommodation); Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29096, 29127 (Apr. 19, 2024) (codified at 29 C.F.R. pt. 1636) (noting that time off for prenatal or postnatal healthcare appointments is a reasonable accommodation under the PWFA); id. at 29104 (noting that unpaid leave “to attend a medical appointment or for recovery” related to abortion can be a reasonable accommodation). Several lawsuits have already been filed alleging that employers denied workers leave under the PWFA. See Complaint at 2–3, EEOC v. Polaris Indus., Inc., No. 5:24-CV-01305-CLS (N.D. Ala. Sep. 25, 2024) (alleging employer denied leave for prenatal appointments); EEOC v. Lago Mar Props., No. 24-CV-61812, 2024 WL 5146189 (S.D. Fla. Oct. 10, 2024) (alleging employer fired worker when she requested leave to recover from a stillbirth); Complaint at 4, EEOC v. Kurt Bluemel, Inc., No. 1:24-CV-02816-JKB (D. Md. Sep. 30, 2024) (alleging employer eliminated worker’s position during her childbirth leave).
[314]. Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29193 (emphasis added); see supra Part II.C.
[315]. García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000); Blanchet v. Charter Commc’ns, LLC, 27 F.4th 1221, 1229 (6th Cir. 2022).
[316]. 42 U.S.C. § 2000gg(6); Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29193 n.43.
[317]. See supra Part I.C.3.
[318]. 42 U.S.C. § 2000gg(6).
[319]. See, e.g., García-Ayala, 212 F.3d at 650.
[320]. See Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. at 29127 (declining to set a standard for length of childbirth leave because of “the differences in workplaces and the possibility that the employee has access to leave through the FMLA, State law, or an employer’s program”).
[321]. Id. at 29198 (providing that employers must consider requests for leave as a reasonable accommodation even if they do not otherwise offer leave as an employee benefit, the requesting worker is not eligible for leave, or the worker has used up their leave under the employer’s policy or government programs).
