In the wake of a surge in Equal Employment Opportunity Commission lawsuits accusing companies of violating the Pregnant Workers Fairness Act, employers should be prepared to accommodate reasonable requests by workers, experts say.

Legal and industry experts stress that having proper knowledge of the law’s broad scope and establishing good practices for discussing reasonable accommodations with pregnant workers are the best ways to address the risk of litigation.

“This is a growing exposure that employers need to be very mindful of. Some carriers we work with regularly have noted that this is the single largest increase in new claims activity they’ve seen in the last few years,” said Kelly Thoerig, Richmond, Virginia-based managing director of employment practices liability and wage and hour coverage leader at Marsh.

The PWFA was enacted in June 2023 to fill gaps in the Americans with Disabilities Act of 1990. Under the law, private companies with 15 or more employees must be willing, absent undue hardship, to make reasonable accommodations for workers whose capabilities are limited by conditions associated with pregnancy and childbirth, including conditions related to in vitro fertilization treatment.

The PWFA differs from the ADA by limiting how much and the type of medical information a company can seek from an employee after an accommodation request is made and by providing examples of accommodations that would generally be considered reasonable, said Allison B. Gotfried, a New York-based employment attorney at Venable LLP.

“It also says companies may have to temporarily suspend an essential job function as a reasonable accommodation, which is not the case under the ADA,” she said.

Affected workers have been quick to inform the EEOC of alleged violations of the law. The agency’s general counsel reported that in the 11 months after the law went into effect, the agency received 1,869 charges from workers complaining their employer failed to provide them with reasonable accommodations.

Between Sept. 10 and Oct. 11, the EEOC announced the filing of four federal lawsuits against companies over alleged PWFA violations.

“Doing all of this in about a month speaks to how aggressively the EEOC is going to be in its enforcement of the PWFA,” said Delaney M. Busch, an employment attorney in Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC’s Boston office.

Ms. Busch added that the EEOC’s enforcement of the PWFA will have a “significant impact on the employment law landscape, as well as companies’ accommodation policies and practices.”

“It’s going to change the way employers deal with pregnant employees. Employers are going to have to think proactively about how to provide accommodations for impacted workers and whether they have the necessary infrastructure with workers,” said Mary M. Gardner, a Washington-based partner at Venable.

The results of the Nov. 5 election are not likely to result in a “significant shift” of the EEOC’s focus on pregnancy-related issues, in part because the commission’s Democratic majority will remain in place until at least mid-2026, said Christopher DeGroff, a Chicago-based employment attorney at Seyfarth Shaw LLP.

Moreover, Republican appointee Andrea Lucas, the presumptive pick for the new acting chair of the commission, has expressed strong support for the PWFA, he said.

Also, procedural checks and balances would make it difficult for the incoming administration’s appointment of a new EEOC general counsel to result in large-scale changes in litigation priorities any time soon, Mr. DeGroff said.

“I would expect the EEOC to continue its robust pursuit of pregnancy-related investigations and litigation in the foreseeable future even with the change in administration,” he said.

Employers should be mindful of how they handle and respond to PWFA accommodation requests. “That’s going to be critical for companies going forward,” Ms. Busch said.

To address the risk, companies should ensure that individuals responsible for handling accommodation requests are sufficiently trained to recognize such requests and engage in the interactive process. A request subject to the PWFA doesn’t necessarily have to be in writing or in a particular form; it might be verbal, said Joni Mason, New York-based senior vice president of national executive and professional risk solutions claims at USI Insurance Services LLC.

Continued enforcement momentum by the EEOC could prompt underwriters to ask more targeted questions to companies about how they handle PWFA accommodation requests and whether management has received training on how to recognize and address such requests, Ms. Mason said.

EEOC lawsuits alleging violations of the PWFA are most likely to trigger employment practices liability insurance policies, which provide coverage for lawsuits brought by existing and potential employees. Full coverage for settlements will depend on whether a policy has exclusions that may apply to certain PWFA accommodation claims, such as an exclusion for claims regarding failure to provide rest breaks, Ms. Gardner said.

While standard EPLI policies likely will cover defense costs and compensatory damages awarded to pregnant employees, obtaining coverage for the amounts companies pay to comply with a reasonable accommodation required by the PWFA is going to be a tougher fight, she said.

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EEOC takes vigorous approach on discrimination statute enforcement

The Equal Employment Opportunity Commission’s recent filing of five lawsuits against companies over alleged violations of the Pregnant Workers Fairness Act demonstrates how aggressive the commission will be in enforcing the law, experts say.

“It’s a very hot topic for the EEOC, so it is something that employers really need to be cognizant of and keep abreast of,” said Joni Mason, New York-based senior vice president of national executive and professional risk solutions claims at USI Insurance Services LLC.

The lawsuits, filed in federal courts in Alabama, Indiana, Kentucky, Maryland and Oklahoma, accuse the companies of violating the PWFA, the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964.

The commission asked the courts to enter orders to bar the companies from denying reasonable accommodations to qualified employees and to compel them to provide compensation for affected individuals’ past and future monetary losses resulting from the allegedly unlawful employment practices.

Penalties for violating the PWFA largely mirror those for Title VII violations for employers that are covered under both laws and include compensatory damages, potential punitive damages for certain conduct, injunctive relief and attorneys fees and costs, said Allison B. Gotfried, a New York-based employment attorney at Venable LLP.

Compensatory and punitive damages are capped, depending on the size of the employer, with combined limits of $50,000 for companies with 15 to 100 employees to $300,000 for employers with more than 500 employees.