Understanding Your Rights: Perimenopause and Menopause Workplace Accommodations

Linda, my client, and a dedicated teacher in New York, found herself struggling with debilitating menopause-related symptoms, especially when temperatures soared, her classroom became unbearable, exacerbating her symptoms and impacting her ability to teach effectively. Along with ten other women over the age of 40, they requested a simple and eminently reasonable accommodation: a removable air conditioner for their classrooms.

However, the school district repeatedly denied these requests, relying on outdated interpretations of the Rehabilitation Act of 1973 and dismissing the significant impact of perimenopause and menopause on women’s health and work performance. Additionally, several of these over 40 women have other impairments exacerbated by excessive heat, further underscoring the need for accommodative flexibility.

This situation is reminiscent of the challenges women faced for decades before the enactment of the federal Pregnant Workers Fairness Act (PWFA), when employers simply denied flexibility and accommodations to pregnant women, both pre and postpartum by stating that pregnancy is “elective” and not a recognized disability, even following child birth.

Just as pregnancy-related medical conditions and the natural limitations of pregnancy were once inadequately addressed by employers, perimenopause and menopause are similarly natural life stages with significant impacts that necessitate workplace accommodations—full stop. And the arguments for these protections are similar, underscoring that menopause is a protected life stage deserving of reasonable accommodations under already existing laws.

In a significant step forward, my colleagues Karen Giblin , Catherine Crider and I drafted a Menopause Workplace Protection Act proposal to Congress, which was presented by Karen Giblin on July 23, 2024 during a hearing on Menopause and Mid-Life Women's Health.

This proposal is now under consideration by several Congresswomen as a bill modeled after the PWFA, aiming to provide comprehensive workplace protections for women experiencing menopause.

You Are Still Protected Now

Understanding Perimenopause and Menopause

Perimenopause is the transitional period leading up to menopause, typically occurring in women aged 40-55, whereas menopause marks the end of menstrual cycles, diagnosed after 12 months without a menstrual period. Both stages involve hormonal changes that can cause a range of challenging symptoms that can affect work performance.

Common Symptoms

• Hot Flashes and Night Sweats: Sudden, intense heat sensations that can disrupt sleep and cause discomfort during the day.
• Mood Swings, Irritability, and Anxiety: Emotional fluctuations, including increased anxiety, that can impact decision-making and interpersonal relationships, particularly before symptoms are under medical management by a menopause-aware clinician.
• Sleep Disturbances: Difficulty falling asleep or staying asleep, leading to fatigue and reduced cognitive function during the day.
• Fatigue and Brain Fog: Persistent tiredness and periods of mental fogginess (brain fog), making it challenging to focus, remember details, and maintain productivity, at least until symptoms are optimally managed.
• Joint Pain, Muscle Aches, and Dizziness: Physical discomfort that can affect mobility and overall comfort, along with occasional dizziness that may interfere with daily activities.
• Memory Lapses: Short-term memory issues that can impact the ability to recall important information or think clearly during critical moments.
• Weight Gain and Metabolism Changes: Changes in body composition that can affect energy levels, self-esteem, and overall health.
• Heart Palpitations: Irregular heartbeats or fluttering sensations that can cause concern and stress, particularly during high-pressure situations.

Impact on Work

These disruptive symptoms can significantly affect a woman's ability to perform her job effectively.

Understanding the impact of peri/menopause symptoms on work performance is the first step in seeking necessary support and accommodations and to protect yourself from getting fired for perceived performance issues related to these natural, sex-specific, biological life stage changes.

Legal Rights for Perimenopausal and Menopausal Women

Overview of Legal Protections

Women experiencing perimenopause and menopause are protected under several employment laws that ensure they are not discriminated against and are provided with reasonable accommodations.

Americans with Disabilities Act Amendments Act (ADAAA)

The ADAAA provides protections for individuals with conditions that affect “major life activities and bodily functions,” including symptoms related to perimenopause and menopause. Under the ADAAA, employers must engage in an interactive process to determine reasonable accommodations unless it would cause a provable and substantial “undue hardship” on the employer, which is a high standard to meet. ?

Age Discrimination in Employment Act (ADEA)

The ADEA protects employees aged 40 and older from age-based discrimination. Since perimenopause and menopause typically affect women in this age group, the ADEA can provide additional protection against discriminatory practices against women in this large demographic.

Title VII of the Civil Rights Act

Title VII prohibits employment discrimination based on sex, and menopause is the inevitable end stage of the reproductive life cycle for ALL women who live long enough.? Additionally, when combined with age and reproductive system-related medical conditions, this creates an intersectional "sex-plus" status deserving of reasonable accommodations. Discriminating against women experiencing perimenopause and menopause is a form of “sex-plus” discrimination, as it combines gender with age and health status (disability).

New York State Human Rights Law (NYSHRL)

Linda and her colleagues work north of New York City, so the NYSHRL provides additional comprehensive protections for individuals with disabilities, including conditions affecting major life activities and bodily functions such as menopause-related symptoms. Under this reproductive life stage protective law, individuals enduring symptoms that substantially limit their daily activities or bodily functions are entitled to reasonable accommodations in their workplaces absent provable undue hardship on the employer (again, not an easy burden for the employer to meet).

The NYSHRL, especially after its 2019 amendments, offers enhanced protections, requires ALL NY employers to provide reasonable accommodations to employees with disabilities ((in contrast to the ADAAA, which applies only to employers with 15 or more employees), and prohibits discrimination based on age, sex, and other protected characteristics. This law ensures that women in the workforce are supported through necessary adjustments such as the provision of air conditioners to manage symptoms.

New York City Human Rights Law (NYCHRL)

And if Linda and her colleagues worked within New York City, then they’d be additionally hooked up, as the NYCHRL provides even broader protections than the ADAAA and the NYSHRL. It requires that employers provide reasonable accommodations for employees with any “impairment” and prohibits discrimination on the basis of gender, age, and disability.

The NYCHRL's expansive interpretation of what constitutes an impairment includes conditions related to menopause, ensuring that women receive the support they need. Under the NYCHRL, a protected disability can include any physical, medical, mental, or psychological impairment, or a history or record of such an impairment.

Reasonable Accommodations

Reasonable accommodations are adjustments or modifications provided by an employer to enable employees to perform their job despite their medical condition. Examples of accommodations for perimenopausal and menopausal women can include:

• Flexible Working Hours: Adjusting work schedules to accommodate fluctuating energy levels and symptom severity.
• Remote Work Options: Permitting remote work or telecommuting on days when symptoms are particularly challenging.
• Temperature Control Measures: Providing options such as personal fans, air conditioning units, or access to cooler workspaces.
• Access to Rest Areas: Ensuring that employees have access to quiet, private spaces to rest or manage symptoms like hot flashes.
• Adjusted Workload: Modifying task that are physically demanding or require intense concentration, especially during periods of severe symptoms.
• Menopause-Related Leave of Absence: Allowing for short-term leave or flexible sick leave to manage severe symptoms without penalty.
• Increased and Flexible Breaks: Offering additional breaks or the flexibility to take breaks as needed to manage sudden onset symptoms.
• Ergonomic Adjustments: Providing ergonomic furniture or equipment to alleviate physical discomforts like joint pain or muscle aches.
• Access to Private Spaces: Allowing access to a private room or space to manage personal comfort, such as cooling down during hot flashes or taking medication.
• Modified Dress Code: Allowing for adjustments for employees subject to dress codes to accommodate more comfortable, breathable clothing that can help manage temperature fluctuation issues.
• Health Support Programs: Offering workplace health programs, such as access to a nurse, on-site wellness programs, or information sessions on managing menopause symptoms.

How to Obtain Workplace Accommodations

Initiating the Process

1. Consult Your Healthcare Provider: It is best to obtain medical documentation from a menopause-certified practitioner that outlines your condition and the recommended accommodations. Check this link at The Menopause Society for a clinician near you.
2. Document Symptoms: Keep a detailed record of your symptoms and how they affect your work performance.
3. Review Your Company’s Policies: Familiarize yourself with your employer’s policies on reasonable accommodations and the procedures for requesting them, although all you’ll actually need to do is put your requests in writing and retain the email thread when the company responds. You’ll definitely want to keep written proof of your legally protected requests, the company’s response, and all follow-up communications.

Requesting Accommodations

1. Formal Request: Submit a formal WRITTEN request for accommodations to your HR department or any designated officer, or in a smaller organization without an HR department, the owner, president or executive director.? Include medical documentation and a clear explanation of how the accommodations will assist you in performing the essential functions of your position.
2. Interactive Process: Be prepared to cooperate and engage in the interactive process, sometime referred to as a “cooperative dialogue” with your employer to determine suitable accommodations. This is a collaborative discussion to find effective solutions that do not impose undue hardship on the employer. By requesting these accommodations, or complaining about differential treatment based on your “protected” status, these are workplace civil rights requests prohibiting your employer from retaliating against you.
3. Follow Up: Regularly follow up on the status of your request and keep a written record of all communications (it’s worth repeating).

What to Do If Your Request is Denied

1. Request an Explanation: If your request is denied, ask for a written offer of proof about why the request was denied.
2. Seek Legal Advice: Consult with an employment lawyer to understand your rights and explore further actions.
3. File a Complaint: If you believe you are being discriminated or retaliated against, you may file a complaint with the Equal Employment Opportunity Commission or your state or city’s equivalent agency, but only do so as a last resort (more on that in follow up newsletters).

Conclusion

Understanding your rights and knowing how to obtain reasonable accommodations can help you navigate the challenges of perimenopause and menopause in the workplace. By being proactive and informed, you can ensure that you receive the support you need to maintain your productivity and well-being at work, and to protect yourself from being fired for performance or “attitude” issues. It’s my prediction that Linda and her colleagues will soon win this battle, as the school district can’t possibly reasonably argue that it would be an undue hardship to provide removable air conditioners (and I’ll be happy to litigate this case if they double down on their denials).

This obviously unjust situation exemplifies sex-plus discrimination because of the intersectional protected statuses of these over 40 women dealing with temporary symptoms related to this sex-based reproductive stage. If men endured andropause symptoms as distinct and severe as menopause, they’d have executive spa days and hormone lounges in the workplace (and as I’ve said for years, if men could bear children, is there any doubt that FMLA parental leave would be 6 months long and fully paid)?

If you’re dealing with differential treatment or workplace hostility because of pregnancy or menopause and want to discuss your practical and legal options, please email me and Deborah O’Rell in confidence at [email protected], or call 212-766-9100.