The U.S. Equal Employment Opportunity Commission (“EEOC”) published its final regulations implementing the federal Pregnant Workers Fairness Act (“PWFA”). These regulations go into effect on June 18, 2024, and the EEOC assembled summary materials explaining the PWFA and its regulations, which can be found here. Employers would be well-served to use the time before the regulations go into effect to familiarize themselves with PWFA and its regulations, how they create additional layers of legal compliance for certain qualified individuals who need an accommodation, and how the PWFA differs from existing law.

Briefly, the PWFA requires employers with at least 15 employees to make reasonable accommodations for the known limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions of a qualified employee or applicant, unless the employer can demonstrate the accommodation would pose an undue hardship. One of the PWFA’s main goals is to keep pregnant women safely employed (and covered by health insurance). The regulations also emphasize taking each accommodation request on a case-by-case basis; blanket or general accommodation policies and procedures are not acceptable. It is through these lenses that employers should view the obligations imposed by the PWFA.

While California already protects pregnant workers via its Fair Employment and Housing Act (“FEHA”) and Pregnancy Disability Leave statute, there are significant differences between the PWFA and existing obligations under state and federal laws. This means the PWFA requires additional considerations when a qualified individual asks for workplace accommodations. These key differences fall into three general areas: (1) which individuals qualify for an accommodation; (2) the types of accommodations an employer must provide and (3) documentation.

Qualified Individuals

Unlike the federal Americans with Disabilities Act (“ADA”) and the FEHA, a physical or mental condition related to pregnancy can be a PWFA limitation even if it’s not a “disability.” The PWFA looks at whether an individual has a physical or mental condition related to pregnancy, childbirth, or related conditions. These limitations may be minor, modest, and/or episodic (e.g., morning sickness); a need or a problem related to maintaining the employee’s health or the health of the pregnancy (e.g., avoiding certain chemicals, taking breaks, hydration, etc.); or seeking healthcare related to pregnancy, childbirth, or related medical conditions, including lactation (including breastfeeding and pumping), infertility and fertility treatments, the use of birth control, and the loss or termination of pregnancy, including abortion. Further, the definition includes conditions that exist before and after pregnancy. Simply stated, the PWFA’s definition of a “known limitation” is completely different from how state and federal law define a disability, and employers should prepare to accommodate limitations that may not rise to levels previously established by the ADA and FEHA.

One of the most notable PWFA provisions allows an individual to be qualified for a job even if they cannot perform one or more of its essential functions. The PWFA requires an employer to suspend a job’s essential functions if the qualified employee’s inability to perform the essential functions is temporary, the employee can perform the essential functions in the “near future” (generally forty weeks from the start of the temporary suspension), and the inability to perform the essential functions can be reasonably accommodated without an “undue hardship.” This departs from existing California and federal law, neither of which require employers to excuse an employee from performing their job’s essential functions with or without an accommodation.

Reasonable Accommodations

The EEOC’s final rule provides several well-known examples of potential reasonable accommodations, such as modifying facilities, reassignment, acquisition/modification of equipment, and remote work. While reasonable accommodations are determined on a case-by-case basis through an interactive discussion, the regulations list certain accommodations that are almost always reasonable, called “predictable assessments”: carrying water and drink as needed during the workday; additional restroom breaks; sitting; standing; and breaks as needed to eat and drink. Consistent with the theme of keeping pregnant employees on the job, the EEOC views a leave of absence as a leave of last resort under the PWFA. The PWFA also prohibits an employer from requiring an individual to accept an accommodation other than one arrived at through an interactive process and has advised that employers should err on the side of granting an employee’s preferred accommodation.

Requesting Documentation

Another key difference from related statutes is the PWFA’s limitations on employer’s ability to request supporting documentation. The EEOC wants to move employers away from “medicalizing” the interactive process (i.e., requiring doctor’s notes for any requested accommodation). Thus, employers can only request documentation supporting an accommodation if it is reasonably needed for the employer to determine whether to grant the requested accommodation. The PWFA regulations also list several instances in which requiring documentation is not reasonable, including when the limitation and need for reasonable accommodation is obvious, the employer already has sufficient information to support a known limitation related to pregnancy, or the request is for one of the four “predictable assessment” accommodations listed above.

The EEOC has also cautioned employers against using existing FMLA, ADA, or related forms for the PWFA; employers should either not require forms, plan to create new forms, or tailor existing ones.

California employers may be accustomed to requesting medical documentation for every pregnancy-related accommodation. However, given the PWFA’s strict limits on when an employer may request medical documentation, California employers may want to stop asking for medical documentation as a matter of course. Best practice is to simply ask the employee for a description of their requested accommodation and an estimated timeline for the accommodation. When a California employer does request documentation, it should be careful to comply with limits imposed by both the PWFA and California law.

Final Thoughts

Ultimately, the EEOC’s regulations and related materials are a vital resource for complying with the PWFA. Its regulations answer a variety of hypothetical scenarios and provide other helpful, practical advice. We strongly recommend employers familiarize themselves with them and revise their policies and documents accordingly. Although the goal of this alert is to highlight key features of the regulations and the PWFA, employers must consult the regulations or knowledgeable employment law counsel with questions about implementation. Please contact us for more guidance.

If you have questions about how these regulations will affect your business or need advice about how to implement any of these regulations, please contact us.

• Emily J. Fox (efox@wilsonturnerkosmo.com)
• Erik T. Johnson (ejohnson@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.