On December 20, 2022, President Biden signed the Pregnant Workers Fairness Act (“PWFA”) into law, 42 U.S.C. § 2000gg. The PWFA requires covered employers to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the employer’s business. The PWFA directed the Equal Employment Opportunity Commission (“EEOC”) to promulgate regulations to implement its provisions.
1. The Final Regulations
In response to this directive, the EEOC proposed regulations on August 11, 2023, and published final regulations on April 15, 2024. The final regulations will appear in 29 C.F.R. Part 1636 and were published in the Federal Register on April 19, 2024 (89 Federal Register 29096 -29219). They exceed 400 pages and include interpretive guidance construing the law. The regulations and PWFA apply to employers covered by Title VII, including public and private employers with 15 or more employees, unions, employment agencies, and the federal government. The interpretive guidance accompanying the regulations contains numerous examples to illustrate provisions in the regulations.
a. The Regulations Survey Many Topics
The final regulations appear in 29 C.F.R. Part 1636 and include eight broad sections addressing (1) the purpose of the law, (2) general definitions, (3) definitions specific to the PWFA, (4) nondiscrimination with regard to reasonable accommodations related to pregnancy, (5) remedies and enforcement, (6) waiver of state immunity, (7) relationship to other laws, and (8) severability. These provisions are followed by Appendix A to Part 1636, which is entitled “Interpretive Guidance on the Pregnant Workers Fairness Act.”
b. The Regulations Identify Eight Rules In The PWFA
An introduction to the massive document laying out the regulations and the law is embodied in 29 C.F.R. Section 1636.1. That section describes the “purpose” of the regulations. It lists the following eight pivotal points about the PWFA:
(1) it requires employers to make reasonable accommodations to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions, absent undue hardship;
(2) it prohibits a covered employer from requiring a qualified employee to accept an accommodation, other than a reasonable accommodation arrived at through the interactive process;
(3) it prohibits the denial of employment opportunities based on the need of the employer to make reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
(4) it prohibits an employer from requiring a qualified employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee;
(5) it prohibits an employer from taking adverse actions in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions;
(6) it prohibits discrimination against an employee for opposing unlawful discrimination under the PWFA or participating in a proceeding under the PWFA;
(7) it prohibits coercion of individuals in the exercise of their rights under the PWFA; and
(8) it provides remedies for individuals whose rights under the PWFA are violated.
c. The Definitions Broadly Define Pregnancy, Childbirth, And Related Medical Conditions
One of the definitions that has drawn attention is contained in Section 1636.3(b), which defines “pregnancy, childbirth or related medical conditions.” The term related medical conditions is defined, by way of example, to include “termination of pregnancy, including via miscarriage, stillbirth, or abortion.”
2. The PWFA Is Intended To Fill Gaps Left Open By Title VII And The ADA
Appendix A to the regulations provides interpretive guidance on the PWFA. The Appendix begins with an introduction that describes the PWFA and its requirement that employers provide reasonable accommodations to a qualified employee’s and applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the employer’s business.
It then explains the interrelationship between the PWFA and other federal statutory rules that afford independent protections of one kind or another to pregnant employees and job applicants, including prohibitions against discrimination, termination, and retaliation. It states that employees affected by pregnancy, childbirth, or related medical conditions have certain rights under existing civil rights laws, including Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, and the Americans With Disabilities Act of 1990.
These laws prohibit employers from firing or otherwise discriminating against job applicants or employees on the basis of pregnancy, childbirth, or related medical conditions. Congress nonetheless determined that the legal protections offered by these statutes, particularly as interpreted by the courts, were “insufficient” to ensure that pregnant workers receive the accommodations they need.
3. Reasonable Accommodations
The PWFA focusses on accommodations for applicants and employees affected by pregnancy, childbirth, and related medical conditions. Critical terms used in the PWFA are defined in the regulations, including the term “reasonable accommodations.” The regulations also provide examples. As an illustration, the regulations describe reasonable accommodations or changes in the work environment or the way things are done at work.
Examples of reasonable accommodations under the PWFA include:
a. Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
b. Changing food or drink policies to allow for a water bottle or food;
c. Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
d. Changing a uniform or dress code or providing safety equipment that fits;
e. Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
f. Telework;
g. Temporary reassignment;
h. Temporary suspension of one or more essential functions of a job;
i. Leave for healthcare appointment;
j. Light duty or help with lifting or other manual labor; or
k. Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
4. Remember California Law
There is no question that the enactment of the PWFA represents a highly significant development on the federal level. It creates a series of new rules and employer obligations that exceed the protections previously afforded pregnant women under other federal laws. It is, however, less significant for California employers for several reasons.
First, the existing California law, the California Fair Employment and Housing Act (“FEHA”), applies to a broader universe of employers, including those with just five or more employees. The PWFA applies to employers with 15 or more employees. Second, in addition to prohibiting discrimination and retaliation, the FEHA regulations and caselaw already require covered employers to make reasonable accommodations for pregnant job applicants and employees. While the PWFA regulations are certainly very long and elaborate, as is often the case, the introduction of federal regulations in this area is another belated effort by the federal government to catch up and copy California law. Third, the remedies available under the FEHA are potentially far greater than those available under federal law and can include uncapped punitive damages. As a result, plaintiffs typically find it far more attractive to file actions under California law when they have the choice.
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About The Author
Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.
Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.