Night shifts, long hours, high-stress conditions — medical residency is notoriously strenuous.1 For residents who want to become parents, this training, practically necessary to becoming a physician,2 almost inescapably coincides with prime childbearing years.3 As such, medical residents are at a higher risk for adverse health outcomes and complications related to pregnancy.4 While some institutions have voluntarily adopted more protective pregnant-worker accommodations policies in recent years,5 the Pregnant Workers Fairness Act6 (PWFA) may offer a new tool to legally require residencies to accommodate all pregnant residents.7 The PWFA requires employers to provide reasonable accommodations to employees for “pregnancy, childbirth, or related medical conditions” unless doing so would cause an undue hardship.8 Medical residencies, however, fall into a gray zone.9 Though medical residents are full employees of their programs, they are also students.10 The Equal Employment Opportunity Commission’s (EEOC) proposed regulations offer little insight into how to navigate this unique context. Although the PWFA’s impact on medical residents may be restricted as courts are likely to take into account the employer’s business and education interests, the mandated interactive process could potentially result in stronger protections for medical residents.
Introduced over a decade ago, the PWFA repeatedly failed in committee until 2019, when the House Committee on Education and Labor held a hearing to discuss the legislation.11 During the hearing, one theme resounded: women were repeatedly forced to contravene their doctors’ orders for the sake of their employment.12 Dina Bakst, cofounder and copresident of the nonprofit A Better Balance, testified to the stories of women denied accommodations despite doctors’ notes.13 One woman, Whitney LaCount, presented her employer with a doctor’s note explaining a heavy-lifting restriction, only to be deemed a “liability.”14 LaCount was not alone — Bakst’s testimony was replete with examples of women forced to decide between abiding by their doctors’ orders and keeping their jobs.15 Representative Suzanne Bonamici submitted an article from the New York Times describing an even more egregious case where a doctor sent multiple follow-up notes to no avail.16 Ultimately, Bakst explicitly laid out the bottom line: pregnant individuals “need clear rights to accommodations so they can follow their doctors’ orders and stay healthy and on the job.”17
After years of struggle, Congress passed the PWFA in December 2022, President Biden subsequently signed the PWFA into law,18 and the Act took effect on June 27, 2023.19 The Act requires employers to reasonably accommodate “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee” unless they can prove that such accommodations would cause an “undue hardship” to their business operations.20 The PWFA regulates private and public employers with fifteen employees or more.21 An individual is a “qualified employee” for protection under the PWFA if they can perform the essential job functions of their role — with or without reasonable accommodations22 — or could perform those essential functions in the near future.23 Further, the Act prohibits methods of circumventing the accommodation regime. An employer may not require an employee to accept an unreasonable accommodation,24 compel an employee to take leave when another reasonable accommodation is available,25 or retaliate against an employee who requests an accommodation.26
In August 2023, the EEOC issued its proposed rules for enforcing the PWFA.27 Under the proposed regulation, the term “reasonable accommodations” should be interpreted similarly as under the Americans with Disabilities Act28 (ADA).29 The EEOC describes a reasonable accommodation as one that “seems reasonable on its face, i.e., ordinarily or in the run of cases” and appears to be “feasible” or “plausible.”30 The EEOC’s regulation describes three broad categories of reasonable accommodations and provides guidance on their implementation. First, an employee may request an accommodation that will allow them to continue to perform the essential functions of the job.31 Second, an employee can request that their essential functions be suspended, provided that the employee can return to performing it within forty weeks.32 And third, an employee may go on temporary leave.33 In implementing any of these accommodations, “the covered entity may have to prorate or change [the employee’s] performance or production standard so that the accommodation is effective.”34
The PWFA balances an employee’s need for accommodations against an employer’s legitimate business interests by allowing employers to deny accommodations that cause an undue hardship.35 Any accommodation that causes a “significant difficulty or expense for the operation of the covered entity” is an undue hardship.36 To balance both parties’ interests, the employer must engage in an “interactive process” with the employee.37 This process must be individualized, problem-solving oriented, collaborative, and ultimately geared toward reaching a suitable solution for both the employee and the employer.38 In line with the interactive command, the regulations prohibit rigid fixed-leave policies that disallow any exceptions.39
Considering one of the animating concerns in passing the PWFA was to ensure an employee’s ability to comply with doctors’ orders and stay healthy,40 it is ironic that medical residents have not been able to abide by the very recommendations they offer their patients. Protecting medical residents through the PWFA is necessary to address pregnancy discrimination commonly experienced by physicians and residents alike.41 While the regulations clarify and operationalize the statute by providing illustrative examples, including two in clinical settings,42 they do not illustrate how the Act may apply to student workers broadly — let alone residents specifically.43 With little guidance from these regulations, applying the PWFA to medical residents may prove challenging given that courts will likely consider both the educational and business interests of the programs. Nonetheless, the interactive process commanded by the PWFA may be a step toward better protecting medical residents.
Courts will likely consider the educational goals of the residency-employer when assessing the reasonableness of any accommodation,44 thus potentially weakening the PWFA’s protections for medical residents. In the ADA context, courts have recognized that reasonableness is highly fact dependent.45 And where one party is a medical-academic institution, and the other is a student, courts have unabashedly asserted a deferential approach to evaluating academic decisions — for instance, in refusing to alter course curriculums.46 Given that the PWFA regulations rely on the ADA, these decisions are probative. Not only do residency programs seek to maintain their educational efficacy, but also courts will likely want to recognize the parameters and standards set forth by national accrediting institutions.47 These institutions set a resident’s requirements to sit for the board examination.48 As such, some accommodations normally negotiable under the PWFA may be off the table for medical residents. For instance, it is uncertain if suspending essential duties for a maximum of forty weeks after taking leave is feasible without impeding the resident’s educational advancement, as assessed by the benchmarks set by the accrediting institutions.
While some deference to academic prerogatives may be warranted, judicial review is not a rubber stamp.49 Admittedly, given that residency serves to ensure doctors have adequate skills to handle patients’ lives, courts may feel ill equipped to determine the necessary requirements to achieve this outcome. Nevertheless, as the Ninth Circuit noted in Zukle v. Regents of the University of California,50 in extending deference to these institutions, the courts “must be careful not to allow academic decisions to disguise truly discriminatory requirements.”51 The court acknowledged the need to balance deference to educational institutions with enforcing the ADA.52 Institutions must actively seek some suitable accommodations for covered individuals and provide evidence of their efforts.53 Only once this obligation is met can the court defer to the medical-academic institution’s decisions.54
Still, the PWFA’s protections for medical residents may be further limited by the hospital’s business considerations. The undue hardship analysis, which considers the hospital’s business interests in delivering care, can also limit the protections offered to medical residents. Courts may consider that the impact of a resident taking leave or not performing an essential job function might be most significant in rural areas, hospitals where residents help alleviate the effects of the national doctor shortage, or where programs are generally smaller.55 After all, the PWFA regulations contemplate a scenario in which the inability of an employee to perform clinical responsibilities may cause undue hardship for the employer.56
At the same time, there are reasons to be hopeful about the PWFA’s ability to protect pregnant residents. Specifically, mandating an interactive process and prohibiting leave policies that deny any exceptions potentially helps ensure that pregnant residents can comply with doctors’ orders.57 For example, medical residency programs must determine on a case-by-case basis the duration of parental leave to which a resident is entitled under the PWFA — programs can take into consideration not just requirements for board certification, but also the resident’s prior performance, which is easily measured under existing systems of evaluation.58 If a given resident surpasses educational benchmarks, the interactive process should require the program to consider this when determining the length of parental leave.59 This process stands in stark contrast to the status quo. In a 2018 qualitative study documenting physician mothers’ experiences of workplace discrimination during pregnancy, several participants noted that their programs rejected their accommodation requests despite the residents’ high skill levels.60 One participant requested to start clinic fifteen minutes later but, despite having been told multiple times that “[she is] faster/see[s] more patients than any of the other residents,” was rejected.61 As another resident articulated: “I was the golden child — until I got pregnant.”62 Now, by requiring residencies to engage in an individualized, interactive process, the PWFA better positions pregnant residents to assert their rights — even those to which they were technically entitled under existing federal legislation.63
The merging of education and employment could complicate the applicability of the PWFA for more people than just residents; graduate students and student athletes may also encounter similar questions.64 Nonetheless, protecting medical residents is particularly important. Medical residents are distinctively and almost inescapably employed in a hybrid work-education program during their prime childbearing years.65 And failing to protect medical residents ironically undermines a foundational commitment of the PWFA: to ensure all workers can abide by doctors’ orders. Ultimately, while the full force of the PWFA may be attenuated for medical residents, mandating the interactive process will at least require programs to interrogate current policies. Moving forward, the EEOC should clarify how the PWFA applies to employees who are also students. Judicial oversight ensuring that residencies are making a good faith effort to engage in the interactive process will be critical to progress. The PWFA should not become a missed opportunity to hold the medical community to its own commitment to, above all else, “do no harm” by protecting the health of pregnant residents.66