On August 7, 2023, the EEOC proposed new regulations for implementing the federal Pregnant Workers Fairness Act (PWFA). The PWFA was enacted in 2022 and went into effect on June 27th of this year. The law requires employers to make changes to working conditions and provide reasonable accommodations to employees who have pregnancy-related limitations.
The proposed regulations provide details about the PWFA’s enforcement and what accommodations must be provided to employees dealing with health issues related to pregnancy and childbirth. Under the PWFA, conditions eligible for accommodation include a current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.
Accommodations Under PWFA
Note that the PWFA does not override state laws that are more protective of workers, such as California’s Fair Employment and Housing Act and the California Family Rights Act, which already provide many of the same protections. However, California employers should still note the examples provided in the new regulations of “reasonable” accommodations for pregnancy and childbirth-related conditions, which may also be required under state law:
- Job restructuring;
- Part time or modified work schedules;
- Reassignment to a vacant position;
- Breaks (or additional breaks) for use of the restroom, drinking, eating, and/or resting;
- Acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying for jobs that involve these tasks;
- Modifying the work environment;
- Providing seating for jobs that require standing, or standing for jobs that require sitting;
- Appropriate adjustment or modifications of examinations or policies;
- Permitting the use of paid leave (whether accrued, as part of a short-term disability program, or any other employer benefit) or providing additional unpaid leave for reasons, including but not limited to, recovery from childbirth, miscarriage, stillbirth, or medical conditions related to pregnancy or childbirth, to attend health care appointments or receive health care treatment;
- Placement in the employer’s light or modified duty program or assignment to light duty or modified work;
- Adjustments to allow the employee to work without increased pain or increased risk to the employee’s health or the health of the pregnancy;
- Temporarily suspending one or more essential functions of the position;
- Providing reserved parking spaces; and
- Other similar accommodations for employees or applicants with known limitations.
The PWFA also forbids covered employers from requiring employees to take a leave of absence (including a paid leave of absence) if another reasonable accommodation is available.
Broader Protections Under PWFA
The PWFA provides pregnant employees with broader protections than the ADA. For example, pregnant employees no longer have to show that they suffer from a pregnancy-related disability to trigger the reasonable accommodation process – workers with uncomplicated pregnancies can now seek accommodations under federal law without having to show that any particular limitation rises to the level of a “disability.”
Under the PWFA, a “physical or mental condition” requiring accommodation may be modest, minor, and/or episodic in nature. In addition, employees are still considered “qualified” for their position even if they cannot perform one or more essential functions of their position, so long as (i) the inability to perform that function is temporary/not permanent; (ii) the essential function(s) could be performed in the near future (within 40 weeks of its suspension); and (iii) the inability to perform the essential function can be reasonably accommodation.
Contact your Cook Brown attorney if you have any questions about pregnancy-related accommodations available under state and federal law.