On April 19, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) will publish its final rule implementing the federal Pregnant Workers Fairness Act (PWFA) — a federal law that took effect in June 2023.
As previously reported, the EEOC published the proposed rule on August 11, 2023, after which it received approximately 100,000 comments. On December 27, 2023, the EEOC submitted the rule to the Office of Information and Regulatory Affairs (OIRA) for review. Now that the OIRA review is complete and the EEOC approves, the final rule will be effective 60 days after it’s officially published on April 19, 2024.
The PWFA requires employers with at least 15 employees to make reasonable accommodations for the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee or applicant, unless they can demonstrate the accommodation would pose an “undue hardship.” This is similar to the federal Americans with Disabilities Act (ADA) as well as California’s Pregnancy Disability Leave (PDL), which requires covered employers (with five or more employees) to provide reasonable accommodations to employees affected by pregnancy.
California employers should be aware of several notable PWFA provisions, many of which these new regulations address in more detail.
Suspension of Essential Functions
One of the most notable PWFA provisions allows for the temporary inability of an employee to perform an essential function of their position. This departs from California’s PDL, which doesn’t require employers to excuse an employee from performing their job’s essential functions.
The PWFA specifically states that an employee is qualified under the law if — with or without reasonable accommodation — they can perform their position’s essential functions. Additionally, an employee remains qualified if:
- Any inability to perform an essential function is for a temporary period;
- The essential function could be performed “in the near future;” and
- The inability to perform the essential function can be reasonably accommodated (absent undue hardship).
The EEOC further defined the scope of this exception in its regulations, which state that “if the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension.”
In other words, employers may be required to reasonably accommodation suspending essential functions for up to 40 weeks in certain situations unless doing so would impose an undue hardship.
Reasonable Accommodations — Predictable Assessments
The EEOC’s final rule provides several well-known examples of potential reasonable accommodations, such as modifying facilities, schedules, reassignment, acquisition/modification of equipment, uniforms, or devices, remote work, etc.
While reasonable accommodations are generally determined on a case-by-case basis through an interactive process between the employer and employee, the PWFA regulations list certain accommodations — referred to as “predictable assessments” — that are, the EEOC asserts, reasonable in “virtually all cases,” i.e., will not cause undue hardship to the employer. These include allowing an employee:
- To carry water and drink as needed during the workday;
- Additional restroom breaks;
- To sit when their work requires standing, and standing when their work requires sitting; and
- Breaks as needed to eat and drink.
Documentation
The EEOC’s rule provides that if an employer decides to require documentation supporting the accommodation request, it is only permitted to do so if it is reasonable, under the specific circumstances, for the employer to determine whether to grant the accommodation. This is similar to California law, which allows employers to require a medical certification supporting the accommodation request.
California and federal law, however, have two notable differences regarding documentation. First, the EEOC’s PWFA rule allows employers to request documentation to “confirm the physical or mental condition,” that it’s related to pregnancy, childbirth or related conditions, and a description of the adjustment needed. Under California law, however, employers may require documentation with only a description of the requested accommodation, a statement indicating such accommodation is medically advisable and an estimated timeline. The requirements are similar, but California employers should follow California’s medical certification rules and avoid inquiring into the specific medical condition.
Another significant difference is that the EEOC’s rule also lists several instances in which requiring documentation is not reasonable, meaning employers cannot obtain supporting documentation. These include:
- When the known limitation and need for reasonable accommodation are obvious;
- When the employee has already provided sufficient information, such as prior medical certification;
- When the employee is pregnant and the accommodation is one of the predictable assessments listed above (carry water, restroom breaks, sit/stand accommodations, breaks as needed for eating or drinking); and
- Anything more than self-attestation for lactation accommodations.
The EEOC’s PWFA rule is comprehensive and includes an appendix of interpretive guidance and examples. Covered employers should review the final rule and the EEOC’s summary of its key provisions and consult with their legal counsel to navigate the compliance nuances of both California and Federal law plus any necessary changes to their policies and practices.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
CalChamber members can read more about Providing Reasonable Accommodation and Transfer for PDL in the HR Library. Not a member? Learn more about how HRCalifornia can help you.
