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Covered employers also need to be aware of obligations to provide reasonable accommodations and transfers to employees who are affected by pregnancy.
A reasonable accommodation may be required when an employee is affected by pregnancy and needs a change in the work environment or job duties to enable the employee to perform the essential job functions. The employee only needs to be affected by pregnancy, not disabled by pregnancy, for reasonable accommodation and/or transfer obligations to apply.
The determination of whether an employee is affected by pregnancy should be made by the employee's health care provider. For more information, see “Affected by Pregnancy Defined” in PDL Requirements.
Once an employee requests an accommodation or you become aware of the potential need for an accommodation related to the employee's pregnancy, you must engage in a good faith interactive process to determine what accommodation the employee may need. For more information on the interactive process, see Disabilities and Accessibility.
The reasonableness of a requested accommodation must be determined on a case-by-case basis and take into consideration factors such as the employee's restrictions or limitations, the duration of the requested accommodation, and the employer's past and current practices. Reasonable accommodations can take many forms and may include, but are not limited to:
A request for reasonable accommodation does not impact or reduce the employee’s right to up to four months of PDL, unless the accommodation involves a reduction in work hours or intermittent leave. If the accommodation is a reduction in work hours or intermittent leave, the time missed is considered PDL and may be deducted from the employee’s PDL entitlement.
Under California law, a reasonable accommodation need not excuse an employee from performing the essential functions of their position.1 However, temporarily removing an essential function may be a reasonable accommodation under federal law. For more information, see ”Federal Pregnant Workers Fairness Act.” on this page.
An employer may request a medical certification substantiating the need for reasonable accommodation. For more information, see “Medical Certification for PDL” in Pregnancy Disability Leave Notice Requirements.
It is possible that an employee could exhaust all four months of PDL and still be disabled and need time off work. Whether the disability is related to the employee's pregnancy or to another physical or mental disability, you may have to provide additional leave as a reasonable accommodation.
California law specifically provides that the right to up to four months of PDL is “separate and distinct” from an employee's right to take a leave of absence as a form of reasonable accommodation for a disability. The duty to accommodate an employee and provide additional leave under the FEHA must be determined on a “case-by-case basis” and the obligation to provide accommodation “is not diminished by the employee's exercise of her right to pregnancy disability leave.”2
The determination as to whether additional leave is necessary requires an individual evaluation to determine whether the additional requested leave is reasonable and would be effective in allowing the employee to return to work at the end of the leave, and whether the leave would cause the employer undue hardship.
For example, an employee with a high risk-pregnancy who used her entire four months of PDL early in her pregnancy may still be entitled to additional leave under the FEHA's separate provisions requiring reasonable accommodation of disabilities and protection from pregnancy discrimination.
For more information see Disabilities & Accessibility.
You must grant the request of an employee affected by pregnancy to transfer to another position if the employee’s health care provider advises that the transfer is medically advisable and if the transfer can be reasonably accommodated.
You can accommodate a transfer request by transferring another employee, but there is no obligation to do so.
You are not required to:
An employer may request a medical certification substantiating the need for the transfer. For more information, see “Medical Certification for PDL” in Pregnancy Disability Leave Notice Requirements.
If you have a policy, practice or collective bargaining agreement that requires or authorizes transfers for temporarily disabled employees to “light duty” positions for the duration of a disability (whether work-related or not), you must provide the same for an employee affected by pregnancy who requests a transfer.3
For example, if you provide modified- or light-duty work as an accommodation for employees with work-related injuries, you must offer the same accommodation to pregnant employees. Failing to do so puts you at risk for a pregnancy discrimination claim.
For example, if you provide modified- or light-duty work as an accommodation for employees with work-related injuries, you must offer the same accommodation to pregnant employees. Failing to do so puts you at risk for a pregnancy discrimination claim.
The alternative position doesn't need to have equivalent job duties. Transfer to an alternative position can include altering an existing job to better accommodate the employee’s need for intermittent leave or a reduced work schedule.
When the employee's health care provider certifies that there is no further medical advisability for a transfer, intermittent leave or reduced work schedule, the employer must reinstate the employee to the employee's same position.
The federal Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to make reasonable accommodations for the known limitations related to a qualifying employee’s or job applicant’s pregnancy, childbirth or related medical conditions, unless they can demonstrate the accommodation would impose an undue hardship.
This is very similar to California’s requirements to provide reasonable accommodation to those affected by pregnancy described above. There are, however, some notable differences between state and federal law.
While reasonable accommodations are generally determined on a case-by-case basis through an interactive process between the employer and employee, the PWFA regulations list certain accommodations — referred to as “predictable assessments” — that the EEOC considers to be reasonable in “virtually all cases,” meaning they won’t cause undue hardship to the employer. These include allowing an employee to:
Even if the requested accommodation is one of the predictable assessments, an employer may still argue that these accommodations impose an undue hardship for its business under its circumstances. However, for these specific accommodations, the EEOC expects employers to find that these accommodations won't impose an undue hardship.
Unlike California law, the PWFA allows for the temporary inability of an employee to perform an essential function of their position; meaning, an employer may have to temporarily excuse an employee from performing their job's essential functions as an accommodation during their pregnancy.
The PWFA specifically states that an employee is qualified under the law if they can perform their position's essential functions with or without reasonable accommodation. Additionally, an employee remains qualified even if they are unable to perform an essential function of their job if:
The PWFA regulations require that the determination of whether the employee can perform the essential functions in the near future is made on a case-by-case basis. If the employee is pregnant, however, “it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension.”
In other words, employers may be required to reasonably accommodate suspending essential functions during the employee's pregnancy unless doing so would impose an undue hardship.
The regulations also address how employers may accommodate an employee's inability to perform an essential function of their job during pregnancy. This may include the employee:
Employers can still assert that the inability to perform essential functions can't be reasonably accommodated, i.e., it would cause undue hardship. The employer, however, must consider several factors in making that determination, including:
Under the PWFA, employers cannot require documentation supporting an accommodation request unless it is reasonable, under the specific circumstances, for the employer to determine whether to grant the accommodation. This is similar to California law, which allows employers to require a medical certification supporting the accommodation request. California and federal law, however, have two notable differences regarding documentation.
First, the PWFA allows employers to request documentation to “confirm the physical or mental condition,” that is related to pregnancy, childbirth or related conditions, and a description of the adjustment needed. However, California law does not allow employers to request information about the employee's specific medical condition; employers can only require documentation of the requested accommodation, a statement indicating such accommodation is medically advisable and an estimated timeline. California employers should follow California medical certification rules and not request information about the employee's specific medical condition.
Second, under the PWFA, requiring documentation is not reasonable, meaning employers cannot obtain supporting documentation, when:
California employers covered by PWFA should review their accommodation policies and procedures, including accommodation analysis and documentation procedures, and work with legal counsel to ensure they are complying with both state and federal law.
1. Lopez v. La Casa de Las Madres, 89 Cal.App.5th 365 (2023)
2. 2 CCR sec. 11047
3. 2 CCR sec. 11041(a)