On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) published its final rule implementing the 2023 federal Pregnant Workers Fairness Act (PWFA). And on June 18, 2024, those new PWFA regulations are now effective — and California employers need to be aware of several notable PWFA provisions that are different from California law.
As previously reported, the PWFA requires employers with at least 15 employees to make reasonable accommodations for the “known limitations related to pregnancy, childbirth or related medical conditions” of a qualified employee or applicant — a requirement very similar to California’s pregnancy disability leave (PDL) law, which requires covered employers to provide reasonable accommodations to employees “affected by pregnancy.”
Though the two laws are similar, the EEOC’s new PWFA regulations highlights some notable differences between them.
Generally, the PWFA’s reasonable accommodation framework will be familiar to those who have handled accommodation requests under existing state and federal laws. One of the most notable PWFA provisions, however, provides that an employee remains qualified under the law if any inability to perform the essential functions of their job is temporary and the essential functions can be performed “in the near future.”
In other words, employers may be required to accommodate an employee by suspending essential job functions unless doing so would impose an undue hardship. This departs from California law, which doesn’t require employers to excuse an employee from performing their job’s essential functions. Additionally, PWFA regulations provide that employers may be required to suspend essential functions up to 40 weeks in certain circumstances.
Another difference concerns documentation — PWFA regulations provide that if an employer decides to require documentation supporting the accommodation request, it is only permitted to do so if it is reasonable for the employer to determine whether to grant the accommodation, under the specific circumstances. This is similar to California law, which allows employers to require a medical certification supporting the accommodation request.
Unlike California law, however, 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 requested accommodation is one of four “predictable assessments” described in the regulation, which are accommodations the EEOC asserts are reasonable in virtually all cases, including:
- Carrying water and drinking as needed during the workday;
- Taking additional restroom breaks;
- Sitting when their work requires standing and standing when their work requires sitting; and
- Taking breaks as needed to eat and drink.
The EEOC’s PWFA rule faces several legal challenges with opponents seeking an injunction to halt the rule’s enforcement. In one challenge, a coalition of 17 state attorneys general filed suit in federal district court in Arkansas, but the judge recently dismissed their suit, concluding that they lacked standing to challenge the regulations. In a similar challenge in Louisiana, a federal judge issued a narrow injunction on June 17 — a day before the rule takes effect — blocking the rule’s elective abortion-related provisions (the rule lists elective abortion as a covered medical condition related to pregnancy). This injunction applies in Louisiana and Mississippi as well as to four entities affiliated with the Roman Catholic Church that were part of the lawsuit.
The EEOC’s rule is still effective in California, so employers covered by PWFA should review their accommodation policies and procedures, including accommodation analysis and documentation procedures, and work with legal counsel to make any necessary revisions to ensure they are complying with both state and federal law.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
CalChamber’s Employee Handbook Creator’s Pregnancy Disability Leave policy has been updated to not only address new federal regulations implementing the PWFA, but also include an anti-retaliation provision, as well as language communicating the employers’ intent to engage in the interactive process when receiving accommodation requests. Use the Employee Handbook Creator to clearly communicate company policies and set expectations — in an employee handbook you create online and then export to print from your own printer.
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.
