EEOC Pregnancy Rule Rewrite Puts Miscarriage Accommodations in Play

The EEOC has scheduled a notice of proposed rulemaking for November that could rewrite which medical conditions count as protected under the Pregnant Workers Fairness Act — and the treatment of miscarriage sits at the boundary. Current federal regulations explicitly cover time off and other accommodations for workers recovering from pregnancy loss. Whether that survives the rewrite is the open question, and one the agency declines to answer.

The Pregnant Workers Fairness Act (a 2023 federal statute requiring covered employers to provide reasonable accommodations for known pregnancy-related limitations, absent undue hardship) took effect in June 2023. The EEOC's regulatory agenda says the agency intends to propose changes to its interpretation of "pregnancy, childbirth, or related medical conditions" — the phrase that determines the law's scope. Under current regulations, that definition expressly includes the end of a pregnancy through miscarriage, stillbirth or abortion. As of Wednesday, the proposal had not appeared among the EEOC's 2026 documents in the Federal Register, so the replacement language remains unknown. Workers' rights have not changed simply because a revision is planned.

What does the current rule actually cover?

Existing EEOC guidance says the law can cover an employee who "needs time off because of a miscarriage," and the regulations treat miscarriage and stillbirth as pregnancy-related conditions rather than limiting protections to someone who remains pregnant. The current text defines protected conditions to include "termination of pregnancy, including via miscarriage, stillbirth, or abortion."

Megan Thomas, a Syracuse, New York employment attorney, described what recovery accommodations look like in practice:

"After a miscarriage, someone may need a more flexible schedule. This could include the ability to work from home or additional breaks. Other accommodations can include light duty for jobs that involve lifting."

She added: "Currently, there is explicit protection for someone going through a miscarriage in the EEOC language."

Why miscarriage is the pressure point

Professor Jessie Hill, director of the Reproductive Rights Law Initiative at Case Western Reserve University's School of Law, told Newsweek that the controversial parts of the current rule include abortion accommodation — already blocked by a court — along with fertility issues and contraception. Miscarriage, in her view, is different.

"I'm honestly not sure that miscarriage is one of those controversial things. Miscarriage is pretty obviously related to pregnancy, since you can't have a miscarriage unless you're pregnant," Hill said.

Brianna Williams, founder and managing attorney of Mélange | A Williams Firm, put it more sharply: "Miscarriage is where a narrower PWFA rule would be felt first."

"Miscarriage falls squarely at that boundary, because a worker's need for accommodation often begins at the moment her pregnancy ends," Williams said. "The current regulation resolves that question in her favor. If the revised rule leaves it unresolved, I expect many employers to resolve it against her, long before any court has occasion to weigh in."

Williams also stressed a structural limit on the agency's power: a regulation cannot narrow the statute Congress passed. "A worker who miscarries would retain a strong argument that the PWFA protects her," she said. "The more immediate consequences would arise in the workplace, where most accommodation decisions are made."

What replaces the PWFA if it narrows?

If miscarriage accommodations shrink, workers fall back on a patchwork: the Pregnancy Discrimination Act (a 1978 amendment to Title VII prohibiting pregnancy-based discrimination), the Americans with Disabilities Act and the Family and Medical Leave Act. None is equivalent.

"We do have a patchwork of employment protections, but they are not interchangeable," said Alison Breiter, department lead for labor and employment at Farah & Farah. "The PWFA provides a specific accommodation right that may not be available under the ADA, Title VII, or FMLA. Narrowing the PWFA could leave some workers with fewer practical options, particularly those who do not meet the eligibility requirements of other laws."

The ADA could cover some physical or mental impairments associated with miscarriage; the FMLA offers unpaid, job-protected leave for eligible workers.

What does the enforcement record show?

An EEOC spokesperson declined to address whether miscarriage protections could change, saying the agency "does not comment on potential rulemaking deliberations or speculate about future regulatory actions." The spokesperson said Chair Andrea Lucas "remains deeply committed to enforcing the laws that protect pregnant workers," pointing to more than 40 public pregnancy-related enforcement actions since the start of the second Trump administration. The agency says it has filed 24 lawsuits and secured more than $1.6 million in monetary relief for victims of pregnancy discrimination since January 2025.

Among those cases: an EEOC lawsuit filed against Family Dollar Stores of North Carolina in August, in which a worker requested brief leave for urgent pregnancy complications and was fired after failing to produce a doctor's note the same day. She subsequently learned she had miscarried.

Do accommodations affect pregnancy outcomes?

Research from University of Wisconsin-Madison estimates pregnancy-accommodation protections are associated with a 9.6 percent decline in miscarriages and a 3.2 percent increase in live births in newly covered states. The findings do not establish that denying an individual accommodation causes a miscarriage.

"The most plausible explanation is physical. Heavy lifting, prolonged standing, heat exposure, and missed prenatal appointments all place strain on a pregnancy, and accommodation laws allow workers to reduce that strain without jeopardizing their employment," Williams said. She cautioned: "Population-level research identifies patterns; it cannot establish that any individual loss resulted from a denied accommodation."

Her distinction is the crux for HR: the research examines whether accommodations help prevent loss, while the proposed rule will determine whether a worker who has already experienced a loss gets time to recover.

Who feels it first?

Warehouse, restaurant and hospital workers face the sharpest exposure. "Unlike an office employee who may be able to work remotely or adjust her schedule, someone working in a warehouse, restaurant, or hospital may have very few options if her employer refuses to modify her duties," Breiter said.

Thomas noted that low-wage workers often need the law's backing to make requests at all: "Without a law that supports their right to ask for accommodations, they may not ask for them." Williams added that attendance-point policies can turn recovery into routine termination paperwork — "precisely the workers the PWFA was enacted to protect."

What should HR watch in the proposal?

The Unified Agenda anticipates a public-comment period ending in January, though those dates are estimates. Once published, the first test is whether "miscarriage" remains explicitly in the definition. Thomas flagged timing language too: are workers protected only "during" pregnancy, or for pregnancy-related conditions after it ends?

Breiter counseled a broader lens: "I would not judge the proposal simply by whether it removes the word miscarriage. I would look at whether it changes the practical ability of an employee to obtain time off, medical recovery accommodations, or temporary workplace modifications following a miscarriage. That is where the real impact will be felt."

Williams noted the abortion provisions warrant scrutiny as well, since some miscarriage care involves the same medications or procedures. The regulatory text and examples will matter more than any announcement. When the proposal lands, employers will learn whether miscarriage stays firmly inside the federal accommodation guarantee — or becomes a question HR has to answer on its own.