In 2023, the U.S. Congress passed the Pregnant Workers Fairness Act (“PWFA”) and, in June 2024, the Equal Employment Opportunity Commission’s (“EEOC’s”) regulations interpreting the PWFA took effect. In general, the PWFA requires employers with at least 15 employees to accommodate an employee or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.
Although the Americans with Disabilities Act (“ADA”), Pregnancy Discrimination Act (“PDA”), and California’s Fair Employment and Housing Act (“FEHA”) already require that employers provide accommodations and leave for workers who are disabled by pregnancy, the PWFA’s requirements are more stringent in several key areas. Thus, California employers should review and update their pregnancy leave and accommodation policies and train employees responsible for overseeing those policies accordingly. A summary of key takeaways for California employers is below.
1. The PWFA Requires Accommodation of Pregnancy-Related “Limitations” – Not Just Disabilities
The PWFA requires accommodation of any “known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The regulations include a list of conditions that may fall within this definition, including but not limited to pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), infertility and fertility treatments, contraception use, endometriosis, miscarriage, stillbirth, having or choosing not to have an abortion, postpartum depression, and others. Notably, the definition includes conditions that may exist before or after a pregnancy – not just conditions related to a current pregnancy.
The EEOC’s implementing regulations confirm that the definition of “limitation” will be construed more broadly than the definition of “disability” under the ADA or FEHA and may include “modest, minor, and/or episodic impediment[s] or problem[s].” Indeed, the regulations identify various examples of such limitations, including but not limited to pain while standing; lifting restrictions; needing time off for prenatal appointments or to seek care for postpartum depression; seeking to limit exposure to secondhand smoke or hazardous chemicals to protect the health of the pregnancy; seeking leave for in vitro fertilization or other fertility treatments; or needing schedule modifications due to fatigue. Given the intended breadth of the law, employers should err on the side of accommodating pregnancy-related conditions to the extent possible.
2. The PWFA Requires Employers to Temporarily Excuse Performance of Essential Job Functions
Notably, the PWFA’s definition of “qualified employee” deviates significantly from the ADA and FEHA by including individuals who are unable to perform their position’s essential job functions. Indeed, accommodation of such individuals is still required if (1) any inability to perform an essential function is temporary; (2) the essential function could be performed in the near future (generally defined as within the next 40 weeks); and (3) the inability to perform the essential function can be reasonably accommodated.
The employer need not excuse an employee from performing essential job functions if doing so would constitute an undue hardship. The EEOC’s regulations identify several factors to be considered in this analysis, including the length of time the worker will be unable to perform the essential function; whether the employee can be offered other work as an accommodation; the nature of the essential function (including its frequency); whether the employer has temporarily suspended essential job functions for other similarly situated employees; whether there are other employees, temporary employees, or third parties who can perform or temporarily be hired to perform the essential function in question; and whether the essential function can be postponed or remain unperformed for any length of time (and, if so, for how long).
The requirement that employers temporarily excuse employees from performing essential job functions is a significant change in the law. Employers should review and update their accommodation policies and processes and ensure that employees receiving and responding to accommodation requests understand this requirement.
3. The PWFA Regulations Identify Specific Accommodations That Are Expressly Deemed Reasonable Under Most Circumstances
The PWFA regulations provide several examples of pregnancy-related accommodations that are likely to be deemed reasonable under most circumstances, including allowing an employee to carry and drink water in their work area, additional restroom breaks, seating for employees that typically stand, and additional breaks to eat and drink. While employers may still deny these accommodations if they would constitute an undue hardship, their express inclusion in the regulations means that declining to provide them would require strong justification. Employers that determine any of these accommodations to be an undue hardship should carefully document the rationale for that determination and consult with employment counsel to assess the risk of denying the accommodation.
4. The PWFA Limits Employers’ Ability to Obtain Supporting Medical Documentation
Because it may be difficult for pregnant workers to obtain medical appointments and supporting documentation early in their pregnancies or on short notice, the PWFA regulations only allow employers to request medical documentation if it is “reasonable” to do so under the circumstances. The regulations state that it is not reasonable to require documentation when both the limitation and need for accommodation are obvious, such as when a pregnant worker requests a different size uniform or safety gear. They also deem it unreasonable to require documentation when an employee asks to carry and drink water, take frequent restroom breaks, be permitted to sit at work, or take additional breaks (since these are known limitations that are typically associated with pregnancy). Lactation-related accommodations should similarly not require supporting documentation. However, it may be reasonable to require documentation of any lifting restriction so the employer can understand the specific weight limitation imposed by the employee’s physician.
The regulations provide that if an employer unreasonably requests medical documentation to support an accommodation request, the employer cannot defend an accommodation denial on the ground that the employee failed to provide such documentation. Similarly, a request for documentation that is not reasonable under the circumstances could also support a claim for PWFA interference or retaliation.
When it is reasonable for an employer to require supporting documentation, the employer may only require “reasonable documentation,” which is defined as documentation that describes or confirms (1) the physical or mental condition; (2) that it is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3) that a change or adjustment at work is needed for that reason.
Next Steps for Employers
In light of the PWFA’s deviation from prior state and federal laws requiring accommodation of pregnant workers and applicants, California employers should consider taking the following steps to ensure compliance with the new requirements:
- Review and update pregnancy accommodation and leave policies to confirm that “limitations” (not just disabilities) will be accommodated and that accommodations may include temporary suspension of essential job functions;
- Review and update accommodation policies and procedures to ensure that medical documentation is only sought for pregnancy-related requests when it would be “reasonable” to do so, as defined by the PWFA regulations;
- Begin assessing whether the accommodations listed in the PWFA regulations (carrying and drinking water, taking frequent restroom breaks, sitting while at work, or taking additional breaks) can be provided without undue hardship so that any requests for these accommodations can be handled promptly; and
- Train managers, Human Resources employees, and other individuals responsible for receiving and responding to accommodation requests regarding any changes to the employer’s policies and the new legal requirements.
Given this new and rapidly developing area of law, employers may also consider consulting with employment counsel regarding any policy or handbook changes and pregnancy-related requests that are made pursuant to the PWFA.
