Fed Pregnancy Leave Extends to California

The U.S. Equal Employment Opportunity Commission (EEOC) released final regulations for the Pregnant Workers Fairness Act (PWFA), which will take effect on June 18, 2024. The PWFA mandates that employers, with 15 or more employees, must offer reasonable accommodations to qualified employees who have known limitations due to pregnancy, childbirth, or related medical conditions, unless providing such accommodations would result in undue hardship to the employer.

The majority of the protections for pregnant workers outlined in the final PWFA regulations are included within California’s Fair Employment and Housing Act (FEHA) and the Pregnancy Disability Leave statute. However, there are some key differences between the final regulations and California’s protections, as noted below:

Qualified Employees Under the PWFA

Under the final regulations, an employee has two ways to establish they are a “qualified employee” under this statute. Similar to California law, “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified for accommodations. However, unlike California law, under the new federal law the employee need not be able to perform the essential function of the job in order to be eligible for accommodations. Specifically, the protections of the PWFA will apply to an employee or applicant who is unable to perform all of his or her essential job duties with reasonable accommodations if:

1. the inability to perform an essential job function is for a temporary period;
2. the essential job function(s) could be performed in the near future; and
3. the inability to perform the essential function(s) can be reasonably accommodated without undue hardship.

The regulations state that the “near future” is generally the average length of a pregnancy, 40 weeks. However, the term “temporary” includes a time period that may extend beyond the near future, which must be determined on a case-by-case basis.

Reasonable Accommodations

The final regulations provide the following examples of reasonable accommodation that are considered almost always reasonable, called “predicable assessments”:

1. allowing an employee to carry or keep water near and drink, as needed;
2. allowing an employee to take additional restroom breaks, as needed;
3. allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed;
4. allowing an employee to take breaks to eat and drink, as needed.

Also, the comments to the final regulations indicate that the following accommodations would also likely be reasonable even though they are not considered “predictable assessments’:

• Modifications to uniforms or dress codes;
• Minor modifications to workstations (e.g., permitting a fan or chair);
• Permitting the use of a workstation closer to a bathroom or lactation space, or farther away from environmental hazards (e.g., heat, fumes, or toxins);
• Use of a closer parking space in an employer-provided parking facility;
• Permitting eating or drinking at a workstation or nearby location where food or drink is not usually permitted;
• Rest breaks as needed;
• Providing personal protective equipment;
• 16 prenatal and postnatal medical appointments; and
• 8 weeks of leave.

Supporting Documentation Requests

The final PWFA regulations modify the definition of “reasonableness” in evaluating the circumstances under which an employer may request documentation from an employee. Under the final rules, an employer may only request the “minimum documentation” necessary to confirm that the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions and describe the adjustment or change at work due to the limitation. The following are examples of when it is not reasonable to seek supporting documentation from an employee:

• When the known limitation and need for reasonable accommodation are obvious;
• When the employer already has sufficient information to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, such as a medical note;
• The accommodations are for one of the “predictable assessments”, explained above;
• The accommodations involve lactation; or
• When the requested accommodations are ones that employees without limitations would ordinarily receive without documentation.

Overall, it is essential for California businesses to thoroughly review the final regulations and summary of the key provisions, as they offer a more comprehensive framework than the existing California rules. Supervisors should be trained on the updated requirements and ensure that reasonable accommodation policies are revised accordingly before June 18, 2024.