By: Hannah Seligman

Published: June 7, 2025

In early January, on the subreddit r/workingmoms, user @bcd_wxy shared a post titled “Traveling for work to a state that potentially denies or delays medical care while pregnant?”[1]  In the post, she shared that she was pregnant with her second child and her company was in the process of planning an offsite meeting in either Texas or Tennessee.[2]  She sought advice from commenters and expressed concern over having to travel to a state that bans abortion while pregnant and the risk of finding herself in a situation where she could be delayed or denied medical care simply because she is pregnant.[3]  While many commenters expressed sympathy, shared similar concerns, and advised her to exert her influence to get the offsite meeting moved, one avenue was left unexplored: her legal options.[4]  Specifically, no one suggested that under the Pregnant Workers Fairness Act, @bcd_wxy could seek an accommodation from her employer to not have to travel to a state with an abortion ban for the duration of her pregnancy.

What is the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act (“PWFA”) is a 2022 law that requires employers to provide a qualified employee with reasonable accommodations for known limitations related to that employee’s pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on their business operation.[5]  Per the PWFA, a “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions of which the employee or their representative has informed the employer.[6]  A qualified employee means an employee who, with or without reasonable accommodation, can perform the job’s essential functions.[7]  An employee will still be considered qualified, however, if (1) their inability to perform an essential function is for a temporary period; (2) they could perform the essential function in the near future; and (3) their inability to perform the essential function can be reasonably accommodated.[8]  The PWFA does not define “reasonable accommodation” or “undue hardship” itself; rather, it relies on the definitions given to those terms in the Americans with Disabilities Act of 1990 (“ADA”).[9]  Under the ADA, a reasonable accommodation includes things like job restructuring, modified work schedules, acquisition of equipment or devices, and other similar accommodations.[10]

Could a Pregnant Employee’s Request Not to Travel for Work to an Abortion Ban State for the Duration of Their Pregnancy Be Considered a Reasonable Accommodation Under the PWFA?

Based on the text of the PWFA and the Equal Employment Opportunity Commission’s (“EEOC”) final rule implementing the PWFA, it seems possible that a pregnant employee’s request not to travel for work to a state with an abortion ban for the duration of their pregnancy could be treated as a reasonable accommodation.  First, as discussed above, the PWFA requires employers to accommodate a known physical or mental condition related to, affected by, or arising out of a qualified employee’s pregnancy, childbirth, or related medical conditions.[11]  In its final rule, the EEOC states that when the PWFA says “pregnancy,” it includes the current pregnancy of the specific employee in question.[12]  As long as the pregnant employee notifies their employer of the pregnancy, a known limitation exists.

To qualify for an accommodation, an employee must be able to perform the job’s essential functions with or without a reasonable accommodation.[13] Nothing prevents a pregnant employee from traveling during their pregnancy.  According to the American College of Obstetricians and Gynecologists (“ACOG”), occasional air travel during a healthy pregnancy is almost always safe.[14]  Pregnant persons can, in most cases, travel safely until close to their due dates and most airlines allow domestic travel until roughly 36 weeks of pregnancy.[15]  Thus, a pregnant employee whose employer considers travel to be an essential function of their job would be able to perform that function with or without a reasonable accommodation.

Even if the employee had a pregnancy that made travel higher risk, they would still be considered a qualified employee for PWFA purposes.  As stated above, an employee is still considered qualified if (1) their inability to perform an essential function is for a temporary period; (2) they could perform the essential function in the near future; and (3) their inability to perform the essential function can be reasonably accommodated.[16]  A pregnant employee meets all these criteria; their inability to travel is only for the duration of their pregnancy, they would be able to travel again for work in nine months or less, and their inability to travel could be reasonable accommodated.

As discussed above, the PWFA uses the ADA’s definition of a reasonable accommodation, which includes things like job restructuring, modified work schedules, acquisition of equipment or devices, and other similar accommodations.[17]  In its final rule, the EEOC explicitly states that reasonable accommodations can include telework, remote work, or a change of work site.[18]  It also includes adjustments to allow an employee to work without increased risk to either the employee’s health or the health of the pregnancy; however, the rule does not specify what kind of adjustments would and would not be allowed.[19]  As has been amply demonstrated through news reporting, abortion bans greatly increase risk to both the health of the pregnant person and the pregnancy.[20]  An adjustment to protect both the pregnant person and the pregnancy, such as by allowing telework or remote work, would, under the EEOC’s final rule, constitute a reasonable accommodation.

Conclusion

While @bcd_wxy received a lot of good advice in response to her Reddit post, notably absent was any acknowledgement of her rights under the PWFA.  In a post-Dobbs world,[21] this was a glaring omission.  Women of reproductive age – defined as women between the ages of fifteen and forty-four – are participating in the labor force in large numbers.[22]  According to the Bureau of Labor Statistics, in 2023, 53.5 percent of women ages sixteen to twenty-four, 78.2 percent of women ages twenty-five to thirty-four, and 77.4 percent of women ages thirty-five to forty-four were participating in the civilian labor force.[23]  With more than one in every three women of reproductive age living in a state with some form of abortion ban, ensuring that women in the workforce are properly informed of their rights under the PWFA is more crucial than ever.[24]

Based on the PWFA’s text and the final rule, it seems reasonable to conclude that a pregnant employee’s request not to travel for work to an abortion ban state should be treated as a reasonable accommodation.  Had @bcd_wxy asked for such an accommodation from her employer, her employer would have been legally required to grant it.  Going forward, workers should be educated about this right so that pregnant workers know they can ask their employer not to require them to travel for work to a state with an abortion ban and have that request accommodated under the PWFA.

 

[1] u/bcd_wxy, Traveling for work to a state that potentially denies or delays medical care while pregnant?, Reddit (Jan. 7, 2025), https://www.reddit.com/r/workingmoms/comments/1hw5d8d/traveling_for_work_to_a_state_that_potentially/?utm_source=share&utm_medium=web3x&utm_name=web3xcss&utm_term=1&utm_content=share_button.

[2] Id.

[3] Id.

[4] Id.

[5] 42 U.S.C. § 2000gg-1(1).

[6] 42 U.S.C. § 2000gg.

[7] Id.

[8] Id.

[9] See id. (defining by reference the terms “reasonable accommodation” and “undue hardship”).

[10] 42 U.S.C. § 12111.

[11] 42 U.S.C. § 2000gg-1(1).

[12] Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29,183 (Apr. 19, 2024) (to be codified at 29 C.F.R. pt. 1636).

[13] 42 U.S.C. § 2000gg.

[14] Travel During Pregnancy: Frequently Asked Questions, Am. Coll. of Obstetricians & Gynecologists, https://www.acog.org/womens-health/faqs/travel-during-pregnancy (last visited Feb. 6, 2025).

[15] Id.

[16] 42 U.S.C. § 2000gg.

[17] 42 U.S.C. § 12111.

[18] Implementation of the Pregnant Workers Fairness Act, 89 Fed. Reg. 29,185 (Apr. 19, 2024) (to be codified at 29 C.F.R. pt. 1636).

[19] Id.

[20] See, e.g., Kavitha Surana, Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable, ProPublica (Sept. 16, 2024, 5:00 AM), https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death (telling the story of twenty-eight-year-old Amber Thurman’s preventable death from sepsis after her suburban Atlanta hospital refused to treat her rare complication from a medication abortion due to Georgia’s six week abortion ban); Kavitha Surana, Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed at Home and Died, ProPublica (Sept. 18, 2024, 6:00 AM), https://www.propublica.org/article/candi-miller-abortion-ban-death-georgia (telling the story of forty-one-year-old Candi Miller who was forced to carry a life-threatening fourth pregnancy and died of sepsis after an incomplete medication abortion because she did not qualify for an exception under Georgia’s six week ban and did not want to visit a doctor because of the law); Cassandra Jaramillo & Kavitha Surana, A Woman Died After Being Told it Would Be a “Crime” to Intervene in Her Miscarriage at a Texas Hospital, ProPublica (Oct. 30, 2024, 5:00 AM), https://www.propublica.org/article/josseli-barnica-death-miscarriage-texas-abortion-ban (telling the story of twenty-eight-year-old Josseli Barnica, who died of an infection after doctors  at HCA Houston Healthcare Northwest refused to intervene in her in-progress miscarriage of a seventeen-week-old fetus because there was still a fetal heartbeat and Texas law required doctors to confirm the absence of a fetal heartbeat before intervening); Lizzie Presser & Kavitha Surana, A Pregnant Teenager Died After Trying to Get Care in Three Visits to Texas Emergency Rooms, ProPublica (Nov. 1, 2024, 6:00 AM), https://www.propublica.org/article/nevaeh-crain-death-texas-abortion-ban-emtala (telling the story of eighteen-year-old Nevaeh Crain, who died of sepsis after a first Texas hospital misdiagnosed her with strep throat, a second correctly diagnosed her with sepsis but sent her home because her fetus had a heartbeat, and a third ran two ultrasounds to confirm fetal demise instead of treating her); Lizzie Presser & Kavitha Surana, A Third Woman Died Under Texas’ Abortion Ban. Doctors Are Avoiding D&Cs and Reaching for Riskier Miscarriage Treatments, ProPublica (Nov. 25, 2024, 6:00 AM), https://www.propublica.org/article/porsha-ngumezi-miscarriage-death-texas-abortion-ban (telling the story of thirty-five-year-old Porsha Ngumezi’s death by hemorrhage after miscarriaging at eleven weeks because doctors gave her misoprostol to help her body pass the remaining tissue from the miscarriage instead of performing a dilation and curettage due to concerns of running afoul of Texas’ abortion law).

[21] See generally Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 302 (2022).

[22] Employment Projections: Civilian Labor Force Participation Rate by Age, Sex, Race, and Ethnicity, Bureau of Lab. Stat., https://www.bls.gov/emp/tables/civilian-labor-force-participation-rate.htm (last visited Feb. 18, 2025).

[23] Id.

[24] Sara Estep, Abortion Access Mapped by Congressional District: 6-Week Abortion Ban Update, Ctr. for Am. Progress (June 20, 2024), https://www.americanprogress.org/article/abortion-access-mapped-by-congressional-district-6-week-abortion-ban-update/#:~:text=More%20than%201%20in%20every,weeks%20of%20pregnancy%20or%20less.