PWFA Undue Hardship: When an Employer Can Deny an Accommodation Request

What Undue Hardship Means Under the PWFA

The PWFA does not write its own definition. Under 42 U.S.C. § 2000gg(7), "reasonable accommodation" and "undue hardship" have the meanings given in section 101 of the Americans with Disabilities Act and are to be construed as they are under the ADA and as set forth in the PWFA regulations.

The ADA definition, at 42 U.S.C. § 12111(10), is "an action requiring significant difficulty or expense," considered in light of listed factors. The PWFA's core duty, at 42 U.S.C. § 2000gg-1(1), puts the burden on the employer: it must accommodate "unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business."

Two consequences follow. The standard is the one HR already applies in disability cases; the PWFA does not raise or lower it. See ADA Undue Hardship Explained. And because the employer must demonstrate hardship, the EEOC's guidance says generalized conclusions will not do: the showing must rest on an individualized assessment of current circumstances.

Statute Versus Regulation

Status as checked on October 4, 2026. The regulation has been in effect since June 18, 2024, and its text has not been amended. Louisiana v. EEOC (W.D. La., May 2025) vacated the portion treating elective abortion as a "related medical condition"; the undue-hardship provisions were not affected. Texas v. Bondi, a challenge to the statute's enactment concerning the State of Texas as an employer, is before the full Fifth Circuit. The EEOC's agenda projects a proposed revision of Part 1636 for November 2026. Confirm whether the proposed rule has been published and whether the Fifth Circuit has ruled. Until a final rule takes effect, apply the current regulation.

The Five General Factors

Under 29 C.F.R. § 1636.3(j)(2), no single factor is dispositive:

1. The nature and net cost of the accommodation.
2. The resources of the facility involved, the number of people employed there, and the effect on its expenses and resources.
3. The resources and size of the covered entity as a whole, and the number, type, and location of its facilities.
4. The type of operation, including workforce composition and structure and the relationship between the facility and the larger entity.
5. The impact on the operation of the facility, including the ability of other employees to perform their duties and the facility's ability to conduct business.

Factors 2 and 3 explain why a department budget is the wrong yardstick: cost is weighed against the resources of the facility and the whole organization, and no dollar figure or percentage of budget automatically qualifies.

Undue hardship is not only about money. The guidance describes it as an accommodation that would be "unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business."

Temporary Suspension of an Essential Function

Here the PWFA departs from the ADA. Under the statute, an employee who cannot perform an essential function is still qualified if the inability is temporary, the function could be performed in the near future, and the inability can be reasonably accommodated.

The regulation adds that when the employee is currently pregnant, it is presumed she could perform the function in the near future because she could do so "within generally 40 weeks of its suspension." For conditions other than a current pregnancy, the EEOC set no specific period: "near future" is decided case by case, an indefinite suspension does not qualify, and the employer makes a new determination each time a suspension is requested, including after a return from childbirth.

The employer must provide a temporary suspension unless it would impose an undue hardship. In making that call, 29 C.F.R. § 1636.3(j)(3) adds six factors to the general five:

1. The length of time the employee will be unable to perform the function.
2. Whether there is work for the employee to accomplish, such as remaining duties, other assigned functions, a temporary transfer, or light duty.
3. The nature of the essential function, including its frequency.
4. Whether the employer has given other employees in similar positions temporary suspensions of essential functions.
5. Whether other employees, temporary workers, or third parties can perform—or be hired to perform—the function.
6. Whether the function can be postponed or go unperformed, and for how long.

Three points from the guidance belong in the analysis. The employer is not required to make up work. If the suspension is workable for part of the requested period—the guidance example is four months of six—the employer must provide that part and then look for other accommodations. Factor 4 cuts one way: having suspended functions for others tends to show there is no hardship, but never having done it does not show that there is one.

For how suspension works in practice, see Reasonable Accommodations Under the PWFA and our comparison of Pregnancy Versus Disability Accommodations.

Predictable Assessments: Four Requests That Should Almost Never Be Denied

Under 29 C.F.R. § 1636.3(j)(4), an individualized assessment of four modifications requested by a pregnant employee "will, in virtually all cases," find them reasonable and not an undue hardship:

• Carrying or keeping water nearby and drinking as needed;
• Additional restroom breaks as needed;
• Sitting if the work requires standing, or standing if it requires sitting, as needed; and
• Breaks to eat and drink as needed.

This is a strong signal, not an automatic rule: the employer still makes an individualized assessment and may present facts showing hardship. In the EEOC's examples, "we have never given anyone a stool" did not establish hardship, while placing water on a table just outside a workstation where liquids were prohibited satisfied the duty. The separate limits on asking for medical documentation for these four requests are covered in PWFA Interactive Process and Documentation.

Lawful and Unlawful Reasons to Deny a Request

Other Employees

Morale is not a defense; disruption of other employees' ability to do their work can be. The EEOC's example is a two-clerk convenience store where cutting one clerk to part-time would leave the other unable to cover customers, stocking, and security, and a temporary hire is not feasible. That is likely an undue hardship, and the store must still offer a stool and rest breaks.

Cumulative Burden

The current impact of accommodations already granted can be considered. For example, if two of three employees who open the store already start late on certain days, a third late start may be a hardship. But having received one accommodation does not make an employee's next request a hardship.

Safety

The PWFA has no "direct threat" defense like the one discussed in The ADA Direct Threat Standard. A claim that a requested accommodation would endanger coworkers or clients is assessed as undue hardship, and the employer has to show it. A belief that an employee is a risk simply because she is pregnant is not a PWFA question; the guidance directs it to Title VII's narrow bona fide occupational qualification standard.

Alternatives

A valid hardship finding on one accommodation does not end the duty: the employer must offer other reasonable accommodations it can provide. Offering an effective alternative is permitted. Imposing one without the interactive process is not, under 42 U.S.C. § 2000gg-1(2).

Leave

Leave can be the accommodation when the employee asks for it or when nothing else works without undue hardship. Under 42 U.S.C. § 2000gg-1(4), leave may not be required if another reasonable accommodation can be provided. See When Leave Becomes a Reasonable Accommodation.

PWFA Undue Hardship Is Not the Title VII Religious Standard

The same two words appear in Title VII's religious-accommodation provision, with a different test. In Groff v. DeJoy (2023), the Supreme Court held that an employer denying a religious accommodation must show the burden "would result in substantial increased costs in relation to the conduct of its particular business."

Do not carry case law or internal thresholds from one standard to the other. One point overlaps: under both, coworker bias or hostility is not a hardship.

How to Document a Denial

A denial should be an HR decision, reviewed by counsel where the stakes warrant it—not a supervisor's on-the-spot answer. Record the analysis as it was done at the time.

Denial Record Template

In the written explanation, state what cannot be provided and why in operational terms, what is being offered instead, and that the employee can come back if her needs or the workplace change. Hardship is judged on current circumstances, so revisit a denial when staffing, season, or duration changes.

The statute also rewards a documented effort. Under 42 U.S.C. § 2000gg-2(g), compensatory and punitive damages may not be awarded on a failure-to-accommodate claim if the employer demonstrates good-faith efforts, in consultation with the employee, to identify and make a reasonable accommodation. The defense applies only to failure-to-accommodate claims, not retaliation or the other prohibitions.

The Leave and Accommodation Management seminar uses scenarios to practice decisions where the PWFA, ADA, FMLA, workers' compensation, and state laws overlap. State and local laws may apply a different hardship test or reach smaller employers. Check each state where you have employees.

Frequently Asked Questions

The Bottom Line

PWFA undue hardship is the ADA standard applied to requests that are usually temporary: significant difficulty or expense, proven by the employer with current facts. Before denying anything, confirm coverage and qualification, work through the factors, ask whether part of the request can be granted, offer every effective alternative, and document the analysis.

For the full framework, read the Pregnant Workers Fairness Act Employer Guide, keep the PWFA FAQs at hand, and see the Leave and Accommodation Management Guide for how this fits with other leave laws. Teams that make these calls regularly can practice them in the Leave and Accommodation Management seminar. This article is general education, not legal advice.