On August 11, 2023, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) for enabling rules to the Pregnant Workers Fairness Act (PWFA). Congress passed the PWFA to address gaps left in case law under Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (ADA), and Family and Medical Leave Act. The PWFA requires "employers"—defined as companies or individuals who employ fifteen or more employees—to accommodate "pregnancy related" health conditions. The NPRM proposes regulations to define what constitutes "pregnancy related" health conditions and how employers are to address them.

The proposed regulation would define health conditions "related to" pregnancy as conditions before, during, and after pregnancy. For example, a worker who was treated for preexisting anxiety that worsens during pregnancy may request an additional accommodation for her exacerbated condition. After pregnancy, individuals with post-partum depression, hypertension, and related medical conditions would be covered by the regulations.

Employers likely will have to engage in the interactive process to accommodate pregnancy related conditions, similar to how they currently address individuals with disabilities under the ADA. Employers should be vigilant and inquire further if an employee speaks about "difficulties related to the pregnancy," or words to that effect, even if the employee does not use the word "accommodation."

However, the...

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