Employee Survival Guide® - Working and Protecting Your Job During Menopause

Episode Date: June 14, 2023

In this episode of the Employee Survival Guide, Mark addresses the taboo issue of the effects of menopause and working.  Over half of all employees are women and half of them are at an age where they are experiencing perimenopause and menopause.  Mark raises the issue that employers need to do more to accommodate women going through this transition. That the underlying medical and psychological issues that comprise menopause are in fact disabilities that are protected under federal, state and city laws.  Mark encourages employees to ask for reasonable accommodations to address symptoms at work and taking leaves of absences if needed. He provides helpful information to help you protect yourself while going through menopause and how managers can become more aware of this taboo but important subject.  Links to sources in the podcast episode:https://www.bls.gov/opub/ted/2023/labor-force-participation-rate-for-women-highest-in-the-district-of-columbia-in-2022.htm#:~:text=For%20the%20nation%20as%20a,was%2056.8%20percent%20in%202022.https://www.nytimes.com/2023/04/28/well/live/menopause-symptoms-work-women.html?smid=url-shareLink to blog article on the same subject: https://capclaw.com/working-and-protecting-your-job-during-menopause/ If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark and welcome back. Today's topic is going to be working and protecting your job during menopause. The majority of employees in the workplace are women, 56.8% to be exact, according to the Bureau of Labor Statistics. And roughly half of them are at an age to experience perimenopause or menopause, according to a recent New York Times article on April 23, 2023.

Employers need to do a better job for working women when it comes to accommodating the many intricacies of an often perplexing transition. The topic of menopause is no more an extended taboo in the workplace. Menopause occurs when a woman has not had her period for one full year. Yet perimenopause, a lesser-known condition, can last anywhere from five to ten years. During both times, estrogen levels take a significant dip, which can set off a whole host of symptoms, the most obvious being hot flashes, night sweats, vaginal dryness. Yet there are at least 30 well-documented and more obscure symptoms

of the menopause transition, which many women may not be aware of, including migraines, increased risk of heart disease, bone loss, increased anxiety, insomnia, and joint pain. Many women might not even associate these other symptoms with the menopause transition. Here are the legal implications of menopause in the workplace. Do women have legal rights as far as accommodating menopause symptoms in the workplace? Right now, menopause is not a condition granted rights under the Americans with Disabilities Act. According to the Job Accommodation Network, a branch of the Department of Labor, according to the JAN, quote,

when menopause occurs as a completely normal result of human aging, it is neither a physiological disorder nor a disability. Consequently, if a person does not have a disability, there is no obligation to accommodate under the ADA. However, employers are free to accommodate employees even when they do not have a disability, end quote. In my opinion, Jan has fallen behind the times, and the above information is not tactically or legally accurate. or legally accurate. Fortunately, there is a growing body of court decisions that have held that the underlying medical complications experienced by women, including the generalized term of, quote, menopause, are in fact covered as physical and mental disabilities under the ADA

and state law and oftentimes in city code. These disabilities must be documented by employees with their employers. That's how you get the employer on the hook. You have to give them notice. By using letters from treating medical personnel to the employer. In turn, employees must also request reasonable accommodations. What ways can employers help accommodate women in menopause? Considering that the symptoms of menopause can, at the very least, be bothersome and, at the most, be debilitating,

employers would be smart to help accommodate this ever-growing population of the workforce. Here are five things to consider when it comes to making accommodations for menopause in the workplace. There are anti-discrimination laws. Consider that in many countries, menopause, a natural biological process, is protected under anti-discrimination laws that prohibit discrimination based on sex, gender, or age. Employers are typically forbidden from treating women unfavorably or creating a hostile work environment due to menopause-related issues. You may qualify for reasonable accommodations.

While menopause alone may not meet the criteria for disability protection, certain menopause-related conditions or symptoms, such as severe hot flashes, migraines, or depression, could potentially qualify if they substantially limit major life activities. Employers may be obligated to provide adjustments such as flexible working hours, changes to the work environment, or modified duties to help women manage their symptoms effectively. Can you take medical leave and sick days? Menopause-related symptoms may occur may occasionally require women to take medical leave. Think about FMLA, Feminine Medical Leave Act, or sick days. Employment laws or company policies regarding medical leave, sick leave, or

disability should be reviewed to ensure that menopause-related conditions are appropriately addressed and protected. Health, wellness, and safety regulations. Menopause symptoms like hot flashes and temperature sensitivity may require adjustments to the work environment to ensure that the health and safety of women experiencing these symptoms. Adequate ventilation, access to cooling mechanisms, or modifications to dress codes to accommodate temperature regulations need to be addressed and necessary. Considerations of privacy and confidentiality. This is an important one. Menopause is a personal and private matter.

Employers should respect the privacy and confidentiality of women experiencing menopause and ensure that sensitive medical information is handled appropriately. Adhering to relevant privacy laws and regulations. Think about HIPAA and medical privacy. It's essential for employees to consult with an employment lawyer to gain a comprehensive understanding of these specific legal requirements and obligations related to menopause in the workplace, and we can help you. Let me just close by adding a few comments. This podcast was issued as a blog article on our website, and I got some feedback. One extreme position was that the article was, quote-unquote, hurting women. I don't know how this information being talked about can be hurting women.

In fact, I did read articles in the UK talking about how they were accommodating women and bringing up the issue of menopause in the workplace and having great results with it, and people applauded the efforts. Some of the other reactions are that it's not a disability, that it's not covered by laws, et cetera. But as the article in the podcast episode demonstrate, there are court decisions, which I didn't get into the depth of, which I will in another episode. But you have underlying related medical conditions. Think about a migraine. A migraine can be very serious. And it alone can lead to documentation for disability.

And the employer has to accommodate that. menopause that are cervical in nature or that are complicated medical issues that women only face. And they can be documented. And you can even think of cancer under the umbrella of menopause, cervical cancer for that matter. So these things are – you have medical conditions that are underlying can have protections under the state, federal, and city laws. And I'm referring to city. For example, I would see New York City Civil Code protecting women in menopause. So the point of the article in the podcast episode is to bring out in the open the fact that menopause is not a taboo. It's not something that cannot be talked about.

It's something that should be talked about and more. And that's what makes it controversial because, well, I'm going to talk about it because it's important. And you should start to consider that if you are half the population of working individuals in the United States, that you have rights and you can do something about it and you don't have to hide in secret. So I guess that's the point of the episode is that you can do something about it. And it's just about awareness and information. So I encourage you to read more about menopause and related situations that can rise to the level of having protections at work. And you can ask your employer about it, and your employer has to accommodate you.

And if they push back on the accommodation for you, I would encourage you to get medical documentation to support your conditions and get the employer to engage in the interactive process to discuss the accommodations you're requesting. And if they push back, then you consider that to be retaliation for failure to accommodate. I can't imagine, given the subject matter, that employers would want to push back on this, especially now in June 2023 where we have such a change of culture in the workplace that employee culture and attitudes and engagements are extremely important. I would say you're at an extreme crossroads right now as an employee. And if you didn't know it, and I'm going to tell you, that you actually have more power and leverage than you ever did in the American

history of working. Let me repeat that. You as an employee, whether executive bandwidth or not, have more leverage against your employer these days than you ever did in American history. You would only know that if you did what I do is employment law and you follow the news. And one example is this. You employers cannot three years after the pandemic start are having problems pushing employees back to full time work in the office. And the statistics are roughly about 56% of employers have done this.

And the remaining employee, you know, if you're remote working or wanting to remote work, that employers are having problems making you go back to work. So that's one example. The other example, and I'll do a separate episode on this, is that the Federal Trade Commission is ruling that your non-compete is going away. And that's going to happen very quickly. Actually, the NLRB, the National Labor Relations Board chief counsel, actually wrote a letter stating that same issue. So you are at a crossroads of American history of working where you actually have more leverage than you ever did in the American workforce

in our history. So menopause fitting inside of that is the perfect timing of events to raise the issue. And you can think now historically with the things that have happened in the last three or four years, starting with the Me Too event, leading forward to where we are now, it's quite an extremely unusual set of historical events that the empowerment of employees is tipping forward in favor of employees against employers. And I can't say that I'm actually the most happiest I've ever been in doing this practice of law ever because I've, for basically 20 years, have dealt with employers' nonsense about working and just taking the blows that employers give out to employees without any leverage.

I mean you're at will. You can't do shit about it. But now it's like, wait a minute. Employees actually have more power in terms of negotiating. And it's – that's a subtle thing that it's actually appearing on an administration level at the – in the Biden administration. And in the court systems, you're starting to see breaks in the chink of the employer's so-called armor of just like ridiculousness to tell employees what they have to do. And it's – one pandemic later and people woke up and said, wait a minute. I don't need to take this shit anymore.

So that's where we're really at. I need to have you understand that. So menopause fitting right in there. We ought to raise it the topic of discussion. It's appropriate. Why not? Fifty percent of the workforce is going through it. If you're a manager, you have to manage that issue for your employees and be aware of discussion. It's appropriate. Why not? 50% of the workforce is going through it. If you're a manager, you have to manage that issue for your employees and be aware of it.

Don't stick your head in the sand if you're a man. And people have real lives and they have circumstances that happen, medically speaking, and menopause is no different than anything else. So I hope you found this informative. And I will look into this further in terms of menopause. I have another episode to do and also an episode regarding the transformation of the American workforce in terms of where we're at now, which is you got a little bit of taste of that in the closing comments to this podcast. As always, I'm working my tail off to think about things to push forward the momentum of your efforts, your rights of working in a fair and equal way, so – in a non-political way. So I hope you appreciate that and I'll give you more to come.

Thank you and have a good week. If you like the Employee Survival Guide, I'd really encourage you to leave a review. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment. So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the standards up.

I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to MCARUY at CAPCLUY.com. That's CAPCLUY.com.