The Pregnant Workers Fairness Act (PWFA) took effect June 2023 and requires employers with at least 15 employees to consider employee and applicant accommodation requests related to “pregnancy, childbirth, or related medical conditions” the same way employers consider requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA). You can read our previous column on the enactment of the PWFA here.

Last month the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with regulating the PWFA, released its finalized rules providing clarity to the law.  We’ve reviewed the 408 pages of the EEOC’s release and have summarized the six biggest developments quick-service restaurants need to be aware of before it goes into effect on June 18, 2024.

1. Broad Coverage Includes Abortion-Related Accommodations

The finalized rule contains a very broad definition of “pregnancy, childbirth or related medical conditions.” A non-exhaustive list of possible circumstances that fall within the broad definition includes:

  • current, past, and potential pregnancy;
  • infertility and fertility treatment;
  • the use of contraception;
  • termination of pregnancy—including via miscarriage, stillbirth, or abortion;
  • pregnancy-related sicknesses, ranging from nausea or vomiting to edema, from preeclampsia to carpal tunnel syndrome, and many other pregnancy-related conditions;
  • lactation and issues associated with lactation; and
  • menstruation.

Given the debate over including abortion-related accommodations, we expect this aspect of the regulations to soon be tested in court. But as of the writing of this column, restaurants must be prepared to accommodate applicants and workers who need time off or other workplace modifications for an abortion procedure or recovery.

2. Many Employees Will Be Deemed “Qualified” For Protection

Only “qualified” applicants and employees will be covered under the PWFA—but the final rule provides a sweeping definition that may encompass many workers as covered under the PWFA. As illustrated below, the PWFA is much broader than the ADA, since it includes terms like “temporary” and “in the near future,” which may be more challenging for employers to determine when handling requests.

  • Someone is qualified if they can perform the essential functions of the position, with or without reasonable accommodation.
  • Someone is also qualified if their inability to perform the essential functions is just temporary and the essential functions can be performed “in the near future.” “Temporary” means a limited time, not permanent, and may extend beyond “in the near future.” “In the near future” generally – but not automatically – means about 40 weeks.

3. “Limitations” Don’t Have to Be Very Limiting to Be Covered

The law says that qualified employees and applicants are covered by the law if they have “known limitations” that relate to pregnancy, childbirth, or related medical conditions. Practically speaking, this means that the worker has communicated to the employer about the pregnancy-related limitation (notably, there is no magic word) making it a broadly interpreted term.  The limitations are also interpreted just as broadly and could include workers with healthy and normal pregnancies.  Unlike the ADA, there’s no threshold for the severity of the physical or mental conditions for accommodation requests.

4. Rule Includes List of Possible Accommodations

Accommodations are simply modifications or adjustments that would enable an applicant or employee to perform the essential functions of the job. They could apply to the job application process or the job itself. The rule provides a long list of potential accommodations employers will need to consider, including, but not limited, to:

  • Job restructuring;
  • Schedule changes, part-time work, and paid and unpaid leave;
  • Frequent breaks;
  • Acquiring or modifying equipment, uniforms, or devices;
  • Making existing facilities accessible or modifying the work environment;
  • Allowing sitting or standing (and providing means to do so);
  • Light duty;
  • Providing a reserved parking space;
  • Temporarily suspending one or more essential function; and
  • Adjusting or modifying workplace policies.

This list is not exhaustive. The EEOC and courts may consider other accommodations to be “reasonable,” so employers will want to work with the employee during the interactive process to review these options but to also identify other possible accommodations.

5. You Can Check Documentation in Certain Cases

If you have reasonable concerns about whether a physical or mental condition or limitation is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” you may request information from the employee regarding the connection.

When requesting documentation, you should engage in the interactive process with the employee and create “a discussion or two-way communication between an employer and an employee or applicant to identify a reasonable accommodation.” The rule also requires you to be reasonable in your requests for documentation and not seek more information than is required in order to make a proper determination.

6. Rule Clarifies When You Can Deny Accommodation Requests

Employers can only deny accommodation requests if they would impose an “undue hardship” on business operations. In general, an accommodation would create an undue hardship if it would cause significant difficulty or expense for operations.  

Under the final rule, the following factors may be considered when determining whether temporarily suspending an essential function of the job will cause an undue hardship:

  • The length of time the employee or applicant will be unable to perform the essential function;
  • Whether there is work for the employee or applicant to accomplish;
  • The nature of the essential function, including its frequency;
  • Whether you have provided other employees or applicants in similar positions who are unable to perform essential functions with temporary suspension of those functions and other duties;
  • Whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function in question, if needed; and
  • Whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long.

Given the temporary nature of these requests for accommodations, establishing an undue hardship will be fact-specific.


The EEOC confirmed that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. At least 30 states and five cities require certain employers to provide some form of accommodations to pregnant employees. If you operate in one or more of these states, your practices may not need to change much, or at all, but if you don’t, then you should consider taking the following steps:

  • Make sure you are already in compliance with the PWFA. If you haven’t reviewed and adjusted your accommodations review process since June 2023, now is the time to do so.
  • Train your HR department on the ins and outs of the regulations so they are familiar with the new details provided in these regulations.
  • Make sure your HR department has access to list of suggested accommodations provided in the regulations as a good starting point for use during the interactive process.
  • Adjust your mandatory HR trainings to include a discussion of this law and the new regulations as necessary.
  • Contact your legal counsel before denying any pregnancy or childbirth-related accommodation request under the undue hardship theory given the high stakes involved.

Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.

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