Published: seacoastonline.com
The state of Rhode Island recently took the unprecedented step of legislating explicit workplace protections for employees experiencing menopause. Although Rhode Island was first to enact such a law, other New England states could follow suit. Even without a specific law in place requiring accommodation of menopause-related conditions, New Hampshire employers should be aware that certain employees going through menopause could rely on other laws for protection.
Typically, menopause due to aging does not “substantially limit a major life activity” and is not considered a disability under the Americans with Disabilities Act (“ADA”) or state law. If a person does not have a disability, an employer is not required to provide a “reasonable accommodation” to help them perform the essential functions of their job. In some circumstances, however, menopause may qualify as an impairment under disability laws due to severe symptoms or other circumstances.
Rhode Island’s law does not require an employee experiencing menopause to prove that their condition qualifies as a disability. Under the law, employees have the right to be free from discrimination based on menopause and related conditions, including vasomotor symptoms (for example, hot flashes and night sweats). Employees also have the right to a reasonable accommodation (a modification to their job or work environment) due to menopause-related conditions, and they may not be denied an employment opportunity based on an employer’s refusal to provide a reasonable accommodation. Because the menopause provisions were incorporated into Rhode Island’s pregnancy accommodation law, the examples of “reasonable accommodations” in the Rhode Island statute (changes to “seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time… or modified work schedules”) are commonly considered accommodations for pregnancy-related conditions. However, an employee experiencing menopause could have a need for the same accommodations due to temperature sensitivity, fatigue, and symptoms impacting attendance. The Rhode Island law does not require an employer to agree to an accommodation if it would pose an “undue hardship” on its business.
The press release announcing Rhode Island’s new law explained that menopause affects half of the U.S. population. Menopause can cause significant challenges in the workplace due to symptoms typically lasting between three and seven years, including hot flashes, insomnia, night sweats, migraines, heart palpitations, anxiety, and other symptoms caused by declining estrogen. The press release cited a Mayo Clinic study finding that menopause-related symptoms cost U.S. businesses $1.8 billion annually in lost productivity.
A case in Maine highlighted the challenges in navigating the disability laws when an employee is experiencing menopause. In Mullen v. New Balance Ath. Inc., a 35 year old employee with hysterectomy-induced menopause told her supervisor that she was having hot flashes and that her emotions “were all over the place.” After she had an emotional outburst at work, she told her supervisor that she just needed to “wipe [her] face and go back to work,” but her supervisor thought the situation “should not have set [her] off as it did,” and allegedly said “I don't think that we should have somebody working here that gets that emotional.” The employee ultimately agreed to resign for “emotional reasons,” but she then sued. The court agreed that the case should go to trial because a reasonable jury could find that the impairment to the employee’s endocrine system and resulting menopausal symptoms could be a disability. Additionally, the employer’s comments suggested that it “regarded her as disabled.” And, the employee’s request to “wash her face and go back to work” might have been enough to put the employer on notice that she was asking for a reasonable accommodation to allow her to do her job. The Mullen case settled before trial, but shone a light on how employers can inadvertently misstep when they do not understand or make assumptions about an employee’s health condition.
In New Hampshire, state and federal laws prohibit discrimination on the basis of a disability if an employee has a “physical or mental impairment which substantially limits one or more of such person's major life activities.” An employee whose menopause-related conditions are debilitating could be protected against disability discrimination and could be entitled to reasonable accommodations ranging from relatively simple changes to workplace temperature, flexible attendance policies, or other adjustments when symptoms flare. An employee who works for a larger employer could potentially take leave under the Family Medical Leave Act if their symptoms qualify as a serious health condition.
It remains to be seen if New Hampshire will take formal legislative steps to protect menopause-related conditions. In the meantime, Rhode Island’s example has charted a path for employers to reduce stigma and improve retention, productivity, and morale for employees in menopause. And as is clear from the Mullen case, employers who plan ahead may minimize future liability under disability and leave laws by adopting policies and educating supervisors on the importance of supporting members of their workforce impacted by menopause.