Harmonizing California Pregnancy Disability Leave Laws with the Federal PWFA Rule in Effect June 18th

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Last year, Congress passed the Pregnant Workers Fairness Act (PWFA) requiring a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”  The Equal Employment Opportunity Commission (EEOC) was then charged with promulgating rules to carry out the law, which in fact it did this past April.  This final rule has now gone into effect as of June 18, 2024, and California employers should pay close attention to how this new law affects employees.

Let’s break this new federal law down:

Which employers are covered? The PWFA applies to private employers and public sector employers (state and local governments) that have 15 or more employees.

Who is protected? The PWFA provides for reasonable accommodations for qualified applicants or employees who have known limitations. Under the PWFA, “limitations” are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

• California’s pregnancy disability leave law similarly mandates covered employers to reasonably accommodate employees “affected by pregnancy.”

Who is a “qualified employee” or a “qualified applicant”? The PWFA “qualifies” an employee or applicant in two ways.

1)      An employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. “Essential functions” are the fundamental duties of the job.

Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation—for example, the cashier who needs a stool, the production worker who needs bathroom breaks, or the retail worker who needs to carry around a bottle of water.

2)      However, if an employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee can still be qualified even if they cannot do the essential functions of their job as long as:

 

• The inability is “temporary;”
• The employee could perform the functions “in the near future;” and
• The inability to perform the essential functions can be reasonably accommodated.

This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be able to get such a change as a reasonable accommodation.

In the final rule, if the employee is pregnant, it is assumed that the employee could perform the essential function(s) “in the near future” because they could perform the essential functions within generally 40 weeks of the temporary suspension of the essential function. The final rule’s definition in this section does not mean that the essential function(s) of a pregnant employee must always be suspended for 40 weeks, or that if a pregnant employee seeks the temporary suspension of an essential function(s) for 40 weeks it must be automatically granted.

In the final rule, whether the employee could perform the essential function(s) “in the near future” in situations other than when the employee is pregnant is determined on a case-by-case basis.

• California law appears less strict here as it does not require employers to excuse an employee from performing their job’s essential functions. 

What is the process for employees to request reasonable accommodations, and how should employers respond? The employee or applicant should tell the employer that they have a limitation—a physical or mental condition related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition—and that they need an adjustment or change in their working conditions due to the limitation. For example, the worker can say:

• “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”
• “I need more bathroom breaks because of my pregnancy.”
• “I need time off from work to attend a medical appointment because of my pregnancy.”

Once the employer knows, it should engage in the “interactive process” with the employee or applicant. The “interactive process” means simply that the employer and employee communicate, whether by talking or some other way, about the known limitation and the adjustment or change needed at work.

The employer should respond promptly to accommodation requests. If it does not cause an undue hardship to the employer’s business, the employer generally has to provide a reasonable accommodation—either what the employee or applicant requests or another effective accommodation.

The Commission expects that many PWFA accommodations can be granted after simple exchanges of information between employees or applicants and employers, such as brief conversations or emails.

What should employers keep in mind about the PWFA and reasonable accommodation?

• Train supervisors about the PWFA. First level supervisors may be particularly likely to receive accommodation requests and should be trained about how to respond, including how to avoid retaliating against those who request or use a reasonable accommodation.
• Workers do not need to use specific words to request an accommodation to begin the interactive process. Once an employee requests an accommodation, use the interactive process.
• Limitations may be minor and may be associated with an uncomplicated pregnancy and may require accommodations that are easy to make.
• A worker may need different accommodations as the pregnancy progresses, they recover from childbirth, or the related medical condition improves or gets worse.
• For assistance identifying possible reasonable accommodations, consult the Job Accommodation Network (JAN) (https://askjan.org/). JAN is a free, expert, confidential service that helps workers and employers with reasonable accommodations.

Can employers require that the employee or applicant provide information from the employee’s health care provider about the limitation? In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employers also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy.

Although an employer is not required to seek medical information from an employee’s health care provider, the employer may seek information from the employee’s health care provider under limited circumstances. An employer may not require that the employee seeking the accommodation be examined by a health care provider selected by the employer.

First, seeking documentation must be reasonable under the circumstances for the employer.

• In this regard, the PWFA is similar to California law in that both require the employer to be reasonable when requiring medical documentation from the employee.

The PWFA provides scenarios where seeking documentation is not reasonable:

• The limitation and need for an adjustment or change at work due to the limitation is obvious. For example, an obviously pregnant employee who seeks a bigger uniform because of their pregnancy cannot be required to provide additional information.
• The employer already knows about the limitation and the adjustment or change at work due to the limitation. For example, if the employee has already provided enough information that they have morning sickness due to pregnancy and need a later start time, the employer cannot demand a new doctor’s note every time the employee uses the accommodation of coming in later.
• The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing.
• The employee is lactating and needs modifications to pump at work or nurse during work hours.
• The employer would not ask an employee for documentation in that situation normally. If an employer’s policy is that employees only need a note from a health care provider for absences if they are missing 3 or more days in a row, the employer can’t require someone who needs a reasonable accommodation of 1 day off because of pregnancy, childbirth, or a related medical condition to provide information from the health care provider.

        *These examples of unreasonable scenarios under the PWFA are something we do not see in California law.

What can we conclude after seeing that the PWFA has some stricter parameters than its California equivalent? Because the EEOC’s rule applies in California, employers who fall under the PWFA should assess their accommodation procedures to confirm they are meeting both state and federal requirements.  Rosasco Law Group, APC can help you review your leave policies to ensure you are on the right path.