Could menopause accommodation be a specific legal requirement for employers?

Could providing menopause support become a legal responsibility - like the PUMP Act now requires firms to provide space so women to lactate? TLNT finds out:

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Sep 20, 2023

In the last few weeks, TLNT has been banging the drum about the value of women in the workforce – be they carers, or them battling the naggingly-persistent present ‘mommy brain’ stereotype.

But there’s one issue that more and more employees are wanting progress to be made on – and that’s being ‘menopause friendly’.

‘The change’ as it is often euphemistically put – can effect women from as early as their 30s – but employer-indifference to it is becoming recognized as one of the leading causes of women to ‘check-out’ of the workplace.

It’s not difficult to see why.

Menopause occurs when women are most likely to move into top leadership position and yet as a recent ‘Women in the Workplace’ study shockingly found, 40%of women said menopause interfered with their work performance at least weekly, while 20% said menopause interfered with work daily or multiple times a day.

This chimes with research by the Mayo Clinic, which also found that 13% of the women it surveyed aged 45 to 60 reported work-related difficulties due to menopause symptoms and around 11% experienced missed workdays as a result.

All-told, the culmination of this is that the US Department of Labor estimates 516,000 workforce departures occur due to employers not being considerate of women’s menopause symptoms. On top of this an additional 1.7 million women are deemed ‘at risk’ of leaving.

Given that right now, around 20% of the female workforce is affected by menopause symptoms, these figures should be shocking.

Celia Schnupp, labor and employment attorney at Columbus, Ohio-based law firm, Perez Morris, certainly thinks more employers need to be aware of their minimum responsibilities around their duty of care to women going through the menopause.

Today she exclusively talks to TLNT about what protections CHROs need to be giving to women with menopause symptoms;

Q: Thankfully menopause is now much more in the spotlight as something employers need to make allowances for, but is enough being done?

A: “You’re right, menopause is becoming more talked about and certainly less ‘taboo’ – but that doesn’t mean employers are responding fast enough. What’s recently brought things to the fore though, is the concept of ‘identification of a need’ – and whether menopause support should become a legal responsibility. The background to this is the recent enacting of the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act – which extends workplace lactation accommodation rights to approximately 9 million parents who were not previously covered by the 2010 Fair Labor Standards Act (FLSA). In essence, The PUMP Act requires that all employers provide a private, non-bathroom space, free from intrusion for lactation purposes. The question it is now causing some to ask is whether a specific requirement to accommodate for this need implies that one for menopause support should also specifically be created.

Q: Is it likely that specific menopause accommodation could be passed?

A: “It’s an interesting question. The regulations as they stand today already require employers to consider people’s physical and mental state, and that staff should be able to ask for reasonable accommodations. While I don’t think we’re at the point of there being a specific law covering menopause support, the prevailing winds are such that applicants are now looking for companies to provide mission statements in this area, and they want to know what stance they take on mental health and preventative health.”

Q: “What protections – do women currently have?

“Employees have the right to request an accommodation, but at the same time, employers also have a right to determine whether a request is reasonable, so they would need to closely see how state law applies to them, and why they might reasonable be able to decline a request. For example, someone wanting a reduced workload might not be seen as appropriate, but granting someone the ability to occasionally work from home, or work flexibly, might. Employers have to demonstrate that a request is unreasonable though, and so where they could get caught out is if they don’t know why they are reasonably declining an accommodation. But, while there’s this legal measure, what employers should also potentially ask themselves, is whether a refusal to give an accommodation is the ‘right’ thing morally to do.

Q: And is this a particular issue right now?

“Yes. We have more engaged women, more aware of their bodies, and so this is a topic that I don’t think is going to go away. Employers that either downplay or ignoring this are likely to suffer big problems when it comes to attracting and retaining talent.”

Q: “What should employers be doing if they don’t want to see specific menopause laws being brought in?

A “First and foremost, I think they just need to start recognizing that this is a problem. While there has been rising awareness of this, for some this is still considered someone’s ‘private’ issue. What employers really need to start doing is looking around and seeing who’s offering support – specific leave for menopause [like they might do if someone has a miscarriage, or a bereavement], and they also need to start training their managers more. Employers can get sued for not being aware of this, and they would be wise to educate themselves around this sooner rather than later. Just having an understanding of what women go through would go a long way.

Q: What would be regarded as a no-no in this space?

A: “I still hear cases of employers asking women for medical documents confirming they going through menopause. You can understand why employers might want evidence of this, but you also have to ask yourself whether this could be seen as being intrusive, and unwittingly make women less likely to want to raise this, because of the embarrassment this may cause them. A request for some sort of accommodation shouldn’t be opening shared with other people either, and I think a flat refusal for requests for accommodation would now be frowned upon.”

Q: Where do you think we are right now then?

A: “I think many women still don’t want to raise their hand up to this – and so CHROs need to consider whether their company culture somehow contributes to this. Others may want to ‘hide’ the condition, for fear that it will impact promotion or other opportunities. So I think there’s still a lot that isn’t to be happy about. Workplace discrimination may still prevent many from talking about this, but, I think that overall the trend is to be more open about it, especially from younger women seeing their older colleagues going through the menopause.”

Menopause – the stats

  • Women make up 47% of the 2020 labor force, and women ages 45 to 64 make up 17.5% of the labor force in the US
  • If 4% of working women 55 to 64 quit due to menopause symptoms – that’s half a million people leaving the labor force due to menopause.
  • If 13% of working women 55 to 64 consider quitting due to menopause symptoms – that’s another 1.7 million people at risk of leaving the workforce.
  • If we add working women ages 45 to 54, up to 2.9 million more women are at risk of leaving the workforce due to menopause symptoms.

According to the Women in the Workplace survey

  • 87% had not spoken to an employer or manager at work about their menopause symptoms
  • 25% felt their colleagues would NOT support them
  • Only 34% believe they WOULD be supported

Speaking up about the menopause

 The Women in the Workplace survey also revealed that:

  • Only 12% of respondents had actually spoken to their employer or manager about their menopause symptoms,
  • Of these 40% felt the results were unsatisfactory
  • Of the 12% that spoke up 10% said this conversation had a detrimental effect on their reputation and relationships at work.

Being menopause aware has business benefits

  • 57% of women say that if they were considering working for a company, it would be important to them if the company clearly expressed a commitment to support employees with menopause symptoms.
  • 57% say it would be important to them if a potential employer clearly expressed a commitment to supporting employees with menopause symptoms.
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