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 NRPM’s implementation of the PWFA departs drastically from the ADA in other ways. Although employers will still have an undue hardship defense, the proposed regulations would require the temporary suspension of an essential function if an employee (or applicant) would not otherwise be qualified.

For example, suppose a job description and essential function requires an employee to routinely lift 30 pounds or more, but an employee has an indefinite lifting restriction of no more than 10 pounds.  Under the ADA, after weighing other factors, this indefinite lifting restriction may be deemed an undue hardship that the employer need not accommodate.  However, if the employee is pregnant with a 10-pound lifting restriction “in the near future,” the employer would have to suspend the lifting requirement, even if it would otherwise be an undue hardship.  Under the NPRM, the EEOC proposes “in the near future” will be forty weeks from when the employee first requests an accommodation.  The final regulation may modify this time limit or soften the seemingly rigid time period.

The NPRM can be found in the Federal Register here. It is currently open to public comment.