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The Federal Pregnant Workers Fairness Act’s Proposed Regulations Are Out!

by Jennifer Shaw and Melissa Whitehead | | August 14, 2023


California employers are used to the fact that in almost every instance, our state employment laws are stricter than federal law. As a result, some tend to ignore federal law, figuring it won’t apply anyway.

Well, here’s an important exception. Effective June 17, 2023, the Pregnant Workers Fairness Act (“PWFA”) requires employers with 15 or more employees anywhere in the country to provide “reasonable accommodations” to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”  Yowza.

On August 11, 2023, the EEOC published its proposed regulations implementing the PWFA and invited public comment.

You can read the full 275-pages of the proposed regulations here (or the EEOC’s summary here), and we’ve highlighted key provisions below:

  • “Pregnancy, childbirth, or related medical conditions,” are broadly defined to include “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.”
  • The PWFA may require the “temporary” removal of an essential function of an employee’s position where the employee is expected to be able to perform the essential function in the “near future,” and the temporary removal of the function can be reasonably accommodated. “Temporary” is defined as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” “In the near future” is defined as “generally 40 weeks from the start of the temporary suspension of an essential function.” Yes, this is WAY different than California law, which requires employees to be able to perform their essential functions, with or without accommodation.
  • The proposed regulations include four “predictable assessments,” which the EEOC says are “simple modifications” that will not impose an undue hardship “in virtually all cases.” The regulations also propose prohibiting an employer from seeking medical certification of the need for these accommodations:
    • Allowing an employee to carry water and drink in their work area
    • Additional restroom breaks
    • Allowing an employee whose work requires standing to sit, and vice versa
    • Allowing breaks to eat and drink, as needed
  • The EEOC also proposes limiting the documentation employers may require from pregnant employees requesting accommodations, and a prohibition on seeking certification when:
    • The limitation and need for accommodation are obvious
    • The employer already has sufficient information to support the known limitation
    • The request is for one of the four “predictable assessments”
    • The request is for lactation accommodation

Employers who want to offer comments and feedback on the proposed regulations may do so here, until October 10, 2023. After the close of the comment period, the EEOC has until December 29, 2023, to issue final regulations.

Yes, your handbooks will be changing…

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