By Laurie Nooren, SPHR, PHRca, SHRM-CP
If you’ve ever had a pregnant employee, you know California’s Pregnancy Disability Leave (PDL) law has long established robust protections for pregnant employees and pregnancy-related conditions. However, recent developments at the federal level have further reinforced these protections with the enactment of the Pregnant Workers Fairness Act (PWFA) in June 2023.
Most recently, on April 19, 2024, the Equal Employment Opportunity Commission (EEOC) released its final regulations of the PWFA, providing employers guidance, which is effective June 18, 2024. The PWFA is broader than both California’s PDL law and the Americans with Disabilities Act (“ADA”). If you have 15 or more employees, the PWFA will apply to you.
While both the PWFA and California’s PDL law share the common goal of supporting pregnant workers, their approaches are a bit different. The PWFA primarily requires employers to provide reasonable accommodations which may include temporarily removing essential job functions in the workplace. In contrast, California’s PDL focus is on providing extended leave and safeguarding job protection specifically related to pregnancy and childbirth.
Here are the Key Differences between PDL and the PWFA:
- Employer Coverage:
- PWFA covers employers with 15 or more employees, whereas PDL applies to those with five or more employees.
- Type of Protection:
- PWFA focuses on reasonable accommodations related to pregnancy, while PDL provides specific leave entitlements for pregnancy disability.
- Duration and Nature of Leave:
- PWFA does not specify a duration for leave but focuses on workplace accommodations for up to 40 weeks; PDL provides up to four months of leave if medically advisable. The PWFA sees a leave of absence as a last resort and focuses on keeping the pregnant employee working.
- Health Benefits:
- PDL requires continued health insurance coverage during leave, a provision not specifically outlined in the PWFA.
- Job Protection and Reinstatement:
- PDL guarantees job reinstatement, whereas PWFA focuses on preventing discrimination and providing accommodations without specific job reinstatement clauses.
What conditions does the PWFA cover? The PWFA provides reasonable accommodations of “known limitations” for applicants and employees for reasons broadly related to pregnancy, childbirth, and other related conditions. Although this list is not all-inclusive, the PWFA covers current pregnancy, past pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, an employee’s choice to have or not have an abortion, and exacerbating a pre-existing condition due to pregnancy or childbirth.
What kind of accommodations will employers need to consider?
Types of reasonable accommodations that an employee may seek under the PWFA include, but are not limited to:
- job restructuring;
- part-time or modified work schedules;
- more frequent breaks;
- acquisition or modification of equipment, uniforms, or devices;
- allowing seating for jobs that require standing or standing in jobs that require sitting;
- appropriate adjustment or modification of examinations or policies;
- permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit) or providing unpaid leave, including to attend health care-related appointments and to recover from childbirth;
- assignment to light duty;
- telework; and
- accommodating a worker’s inability to perform one or more essential functions of a job by temporarily suspending the requirement that the employee perform that function, if the inability to perform the essential function is temporary and the worker could perform the essential function in the near future.
Who is covered by PWFA?
Employees and applicants shall be considered qualified if:
- The inability to perform the essential function of a position 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 without undue hardship
How long must we accommodate under the PWFA? The EEOC has stated the temporary period and in the near future could be as long as 40 weeks (the duration of pregnancy from conception to birth). Yes, this means you may need to make accommodations for about 10 months…….and the temporary period could be per accommodation.
Okay, but can we ask for proof? It depends. In some cases, documentation cannot be required of the employee. The basic rule is that if the request is obvious, such as the need to stand or sit or drink water, do not ask for documentation. Some examples of this are the need for additional restroom breaks, standing/sitting as needed, and carrying water and drink as needed. Only ask for documentation when reasonable.
Is everyone going to want an accommodation now? Well, it seems likely. As a result, we recommend that you consider all accommodation requests on a case-by-case basis. The PWFA specifically states you cannot deny an accommodation because others may want the same accommodation.
Are there new forms/posters required? Yes, because the standard used for reasonable accommodations under the ADA, “substantially limits a life activity,” does not apply to PWFA. We will be creating a Reasonable Accommodation Questionnaire (“RAQ”) specific to pregnancy and related conditions that will be available for our clients. The June 2023 “Know Your Rights” poster already includes information regarding the PWFA and is listed in your all-in-one poster.
As we navigate these legislative changes, employers must remain vigilant in adhering to pregnancy disability and pregnancy-related accommodations. Bottom line: Before denying an accommodation related to a pregnant employee, please reach out to your Silvers HR Consultant for further guidance.
More detailed information can be found here: Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA) | U.S. Equal Employment Opportunity Commission