Quick Hits
- A growing number of states and localities are passing laws to prohibit workplace discrimination based on menopause or perimenopause.
- Menopause symptoms may be covered under the ADA, depending on the woman’s limitations and essential job functions.
- Employers often cover menopause treatments in group health plans.
Legislative Action and Case Law
Legislation (H.R.9671) is pending in the U.S. House of Representatives that would require covered employers to provide reasonable accommodations for workers experiencing menopause symptoms, such as hot flashes, mood changes, sleep disruptions, fatigue, joint stiffness, and pain. The bill has been referred to the House Committee on Education and the Workforce.
Rhode Island and Philadelphia both have laws prohibiting employers from discriminating based on menopause. Illinois and Louisiana enacted laws requiring health plans to cover menopause treatments.
Governors in California and Virginia recently vetoed legislation that would have added menopause protections to state antidiscrimination laws. In vetoing the California law, Governor Gavin Newsom stated that menopause-related symptoms are already covered under California’s Fair Employment and Housing Act (FEHA) if they result in a medical condition or disability. Similarly, the New Jersey Division on Civil Rights has published guidance making clear that employers must accommodate perimenopause- and menopause-related symptoms as pregnancy-related conditions under the New Jersey Law against Discrimination.
There has been proposed legislation in many jurisdictions on this issue. While those proposals may or may not ultimately gain traction, they signal a continuing trend to expand the law to expressly address menopause and perimenopause.
In Coleman v. Bobby Dodd Institute, a 911 call taker sued for sex discrimination under Title VII of the Civil Rights Act of 1964 after she was fired for soiling an office chair twice due to heavy menstrual bleeding related to menopause. In June 2017, the U.S. District Court for the Middle District of Georgia ruled in favor of the employer, finding that menstruation and menopause were not included in legal protections under Title VII. The plaintiff appealed to the federal circuit court, and then the parties reached a settlement in November 2017.
Likewise, in Mullen v. New Balance Athletics, a shoe factory worker sued for disability discrimination, failure to accommodate, and retaliation under the Americans with Disabilities Act (ADA) and the Maine Human Rights Act. The plaintiff had menopause symptoms due to a recent hysterectomy, and she allegedly had an emotional outburst at work and was pressured to resign. Her employer argued that she did not have a disability as defined under the ADA, that she did not request a disability accommodation, and that she did not engage in protected conduct required for a retaliation claim. In February 2019, the U.S. District Court for the District of Maine rejected the employer’s motion to dismiss the three claims. The court affirmed that the ADA covers medical conditions that substantially limit a major life activity, including communication, endocrine function, and reproductive function. The two parties settled before a trial began.
The federal Pregnant Workers Fairness Act (PWFA) requires covered employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. The final regulation to implement the PWFA explicitly lists menstruation and lactation as “related medical conditions,” but federal courts have not yet settled whether menopause and perimenopause qualify as “related medical conditions” under the PWFA.
Disability Accommodations
Severe menopause symptoms may qualify as a disability under the ADA, if the symptoms substantially limit a major life activity, such as sleeping, concentration, or temperature regulation. Some states have even broader definitions of “disability” which could encompass menopause symptoms. Medically induced menopause, such as from surgery or chemotherapy treatment, may be more likely to qualify as a disability under the ADA or state law equivalents, compared to naturally occurring menopause.
Accommodations in the workplace can include portable fans, air conditioners, or windows opened in individual office spaces. Employers may consider providing reduced hours, expanded sick leave that can be used for perimenopause and menopause symptoms, more flexible paid time off benefits, or permission to work from home. They also may consider offering additional breaks for eating or using the restroom, permission to keep water at the workstation, and permission to sit or stand as needed.
Health Insurance Coverage
Treatments for menopause, such as hormonal medications and antidepressants, are often covered in employer-sponsored health plans and pharmacy benefits. Some states already mandate health insurance carriers to cover medically necessary treatment for perimenopause, menopause, and related symptoms and others have introduced similar legislation.
Access to menopause specialists can be provided through telehealth benefits, and mental health benefits specific to menopause can be offered through the group health plan, employee assistance programs (EAPs), or virtual mental health programs. Some third-party service providers administer standalone or medical-plan-integrated menopause benefits. Employer-sponsored wellness programs focused on stress relief or exercise may help some employees manage menopause symptoms. These benefits aren’t just useful for workers in their forties or fifties. Menopause can happen much earlier due to surgery, chemotherapy, or hormonal conditions.
Ogletree Deakins’ Employment Law Practice Group will continue to monitor developments and will post updates on the Diversity, Equity, and Inclusion Compliance, Employee Benefits and Executive Compensation, Employment Law, Healthcare, and Leaves of Absence blogs as additional information becomes available.
Lucas J. Asper is a shareholder in Ogletree Deakins’ Greenville office.
Leslie E. Wallis is a shareholder in Ogletree Deakins’ Los Angeles office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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