The Pregnant Workers Fairness Act (“PWFA”) is a federal law that went into effect on June 27, 2023.  The final regulations issued by the Equal Employment Opportunity Commission (EEOC) to carry out the law went into effect on June 18, 2024. PWFA requires public sector and private employers that have 15 or more employees to provide “reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”  (42 U.S.C. § 2000gg-1(a).) While this may sound familiar, PWFA adds obligations to California public agencies to accommodate pregnant employees that can go beyond those already imposed by existing laws.

PWFA applies broadly to pregnancy, childbirth, and related medical conditions

Generally, pregnancy itself is not “disability” under the federal Americans with Disabilities Act (ADA), but pregnancy-related impairments or complications can be if they substantially limit a major life activity.  In passing PWFA, Congress recognized courts have found “that even severe complications related to pregnancy do not constitute disabilities triggering [ADA] protection” because they did not substantially limit a major life activity, often because of their short duration.  If such pregnancy-related medical conditions did not trigger ADA protection, there was no obligation to accommodate pregnant employees. This left pregnant workers “forced to choose between their financial security and a healthy pregnancy.”

PWFA fills this gap by requiring employers to provide reasonable accommodations to an employee who has limitations in the workplace because of pregnancy, childbirth, or related medical conditions, unless it would be an undue hardship (42 U.S.C. § 2000gg-1(a).)  Pregnancy includes current and past pregnancy, and potential pregnancy including abortion, stillbirth, and miscarriage, and infertility and fertility treatment.  The regulations provide a detailed list of related medical conditions, which includes miscarriage, gestational diabetes, preeclampsia, high blood pressure, anxiety, depression, hemorrhoids, frequent urination, and lactation issues. They also include conditions that may not always be associated with pregnancy, such as carpal tunnel syndrome, chronic migraines, dehydration, and infections. Limitations can be minor or episodic, such as morning sickness or cramping, and may not always meet the definition of a disability under the ADA.  Thus, employers may need to accommodate pregnancy-related medical conditions that would not qualify as “disabilities” under other laws. 

PWFA encompasses a broad range of accommodations – little things can make a big difference

The goal of PWFA is to allow employees to safely maintain their pregnancies in the workplace and recognizes an employer’s obligation to provide reasonable accommodations.  Pregnancy-related medical conditions may require an employee to take actions to protect their pregnancy, such as avoiding lifting, chemicals, or heat, or attending health care appointments.  Reasonable accommodations include:

• Time off for health care appointments, treatment, or recovery
• Schedule changes or a reduced schedule
• Additional restroom breaks
• Breaks for eating and drinking
• Telework
• The ability to sit or stand as needed
• Light duty or help with lifting or other manual labor
• Reserved parking spaces
• Uniform changes
• Temporary change or modification of job duties
• Leave to recover from childbirth or other medical conditions

What is a reasonable accommodation is evaluated based on the facts and circumstances.  An employee may also need different accommodations at various times throughout pregnancy or after childbirth.

While under the ADA, an employee is not considered a “qualified employee” if they cannot perform the job duties with or without reasonable accommodations, under PWFA, an employee’s temporary inability to perform essential functions is not disqualifying.  Rather, PWFA makes clear an employee is still “qualified” and eligible for accommodations if the “inability to perform” is “temporary” and “can be reasonably accommodated,” and the employee could perform the function “in the near future.”  (42 U.S.C. § 2000gg(6)(A), (B).)  Thus, temporary reassignment or modification or suspension of one or more job functions is a reasonable accommodation.

Leave is a reasonable accommodation, but cannot be required if other accommodations are available

While leave can be a reasonable accommodation, PWFA prohibits requiring an employee to take leave if another reasonable accommodation is available. Thus, employers are obligated to consider if other accommodations can allow the employee to perform their job, including temporary reassignment, before implementing leave.

If leave is the only accommodation available, PWFA does not prescribe a specific maximum or minimum amount of time that an employee might be entitled to leave.  Leave is unpaid, but an employee may choose to use accrued paid leaves available to them.

No magic words are needed to request accommodations under PWFA

An employee may simply request accommodations because of their pregnancy or childbirth, but the EEOC’s regulations make clear the communication does not need to reference any specific medical condition or terminology.   EEOC guidance provides the following examples of requests that are sufficient to trigger PWFA:

• “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.”

While some requests may be straightforward and easy to implement, others may require the employer to engage in an interactive process to evaluate if reasonable accommodations are available to allow the employee to work.  The interactive process means an open dialogue, in good faith, to discuss proposed accommodations.  PWFA specifically prohibits requiring an employee to accept an accommodation other than one arrived at through the interactive process.  (42 U.S.C. § 2000gg-1(2).)

Documentation from a health care provider generally not needed

Unlike the ADA interactive process which often begins with a note from a health care provider, employers may only request documentation from a health care provider when it is reasonable and essential to evaluate the accommodation.  It is not reasonable when the need is obvious and the employee provides “self-confirmation” that the need for the accommodation is because of pregnancy, childbirth, or a related medical condition.  The goal of PWFA is to accommodate workers with pregnancy-related limitations – not to put hurdles up.  Often it is difficult for pregnant workers to get written medical notes.  Examples of situations where it would not be reasonable to request a medical note are:

• A pregnant worker asking for a larger uniform;
• A pregnant or lactating employee to ask for a modification of food/drink policies or bathroom breaks to allow for more frequent eating, drinking, bathroom breaks.

If a note from a health care provider is reasonable under the circumstances, it should only confirm the employee has a limitation related to pregnancy, childbirth, or a related medical condition (no specific diagnoses or private health information) and explain the modification that is needed.  The note may also come from “doctors, midwives, nurses, nurse practitioners, physical therapists, lactation consultants, doulas, occupational therapists, vocational rehabilitation specialists, therapists, industrial hygienists, licensed mental health professionals, psychologists, or psychiatrists,” and may be from a telehealth provider.  (29 C.F.R. § 1636.3(l)(3).)

PWFA interaction with other leave and accommodations laws

PWFA does not limit other state or federal laws that may provide protection to employees limited by pregnancy, childbirth or related medical conditions.  When evaluating requests for accommodations under PWFA, California public agencies should also consider the applicability of:

• Leave for a serious health condition under the Family Medical Leave Act (FMLA) (up to 12 weeks);
• Baby bonding leave under FMLA and the California Family Rights Act (CFRA) (up to 12 weeks);
• Pregnancy Disability Leave under the Fair Employment and Housing Act (“FEHA”), California Government Code § 12945 (up to 17 1/3 weeks leave for being disabled by pregnancy, childbirth, or related medical conditions);
• Providing reasonable accommodations and engaging in the interactive process for disabilities under the FEHA and ADA;
• Reproductive Loss Leave under California Government Code Section 12945.6;
• Nondiscrimination against employees based on pregnancy, childbirth, or related medical conditions under FEHA or Title VII of the 1964 Civil Rights Act; and
• Providing support under the Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), a federal law providing protections for employees to express breast milk at work.

Guidelines for complying with PWFA

The goal of PWFA is to make the workplace more welcoming and compassionate for pregnant workers.  Often little things – such as being able to sit more or have more frequent bathroom breaks – can make a big difference.  Public agencies should train supervisors to be mindful of when an employee might need an accommodation under PWFA.  Remember, employees do not need to use any specific words to request accommodations under PWFA, and many employees still feel hesitant to share their pregnancy in the workplace.