Get Ready: New Rights Coming for Pregnant Workers

California employers often don’t need to pay attention to federal employment rules because we have more stringent requirements. However, California employers must now pay attention to the new federal EEOC regulation for the Pregnant Workers Fairness Act (PWFA). This regulation is even more protective in some ways than California’s Pregnancy Disability Leave law and FEHA/ADA requirements.

PWFA History

Last year in June 2023, the U.S. legislature passed the Pregnant Workers Fairness Act (PWFA), and the EEOC published a proposed rule interpreting the PWFA in August 2023. On April 19, 2024, the EEOC’s rule became final and it will go into effect 60 days from April 19. That means the regulation goes into effect on June 18, 2024. You can find a summary of the regulation at the EEOC's website.

The PWFA applies to employers with 15 or more employees. Modeled after the ADA, it requires employers to engage in the interactive process and reasonably accommodate known limitations related to pregnancy, childbirth or related medical conditions, unless accommodation creates an undue hardship.

The PWFA goes one step further than the ADA and requires accommodations for pregnancy-related limitations that do not necessarily arise to a disability status (e.g., occasional morning sickness, needing to attend health care appointments, etc.). Notably, pregnancy itself is not a disability under the ADA.

What California Employers Need to Know

Current laws in California already require employers with five or more employees to reasonably accommodate pregnant employees, and provide up to 17.3 weeks (88 days) of Pregnancy Disability Leave when an employee is “disabled” or “affected” by pregnancy, as certified by their health care provider. Pregnant employees also have protections under the Fair Employment and Housing Act (FEHA).

The additional new requirements will require employers with 15 or more employees to:

• Temporarily suspend essential job functions
• Provide certain “predictable assessments” (e.g., accommodations such as carrying water, additional or longer meal and restroom breaks, etc.)
• Prohibit a request of medical certification in certain instances, such as the “predictable” accommodations noted

Temporary Suspension of Essential Job Functions as Reasonable Accommodation

The PWFA regulation requires employers to temporarily excuse essential job functions, if the employee would be able to perform the essential functions in the near future. The EEOC defines in the near future as generally up to 40 weeks, unless it would impose an undue hardship.

What this means, according to the EEOC, is that “an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be able to get such a change as a reasonable accommodation.”

Predictable Assessments

The EEOC’s regulation also lists certain accommodations deemed reasonable in virtually all circumstances. The EEOC takes the position that these accommodations (termed predictable assessments) do not cause an undue hardship in almost all cases.

• To carry or keep water near and drink as needed
• Additional restroom breaks
• To sit when work requires standing, and to stand when work requires sitting
• Breaks to eat and drink, as needed

While the EEOC does not go quite so far as to say these accommodations must be “automatically” granted, they state, “the individualized assessment should be particularly simple and straightforward” in these circumstances. As discussed further below, employers should not request documentation beyond self-attestation for these assessments.

Unfortunately, the regulation does not include any parameters on predictable assessments. For example, if an employee claims that due to pregnancy, she needs to visit the restroom every 10 minutes or have continual access to food, the EEOC has not provided any guidance on if or when employers may draw a line.

Limitations on Supporting Documentation

The EEOC also provides several examples when it is not reasonable for an employer to request supporting documentation or medical certification. These include:

• When the known limitation and need for reasonable accommodation are obvious
• When the employee or applicant has already provided sufficient information, such as prior medical certification
• When the employee attests to being pregnant and requests one of the predictable assessments above
• For lactation/pumping accommodations

Employers should train supervisors on the new requirements and update reasonable accommodations policies, as needed before June 18, 2024.

For more information, employers may refer to the EEOC’s Summary of Key Provisions, and CEA members may call us at 800.399.5331.