(This column originally appeared in the Inquirer)
Philadelphia workers experiencing menstruation, perimenopause, or menopause will soon have new protections under city employment law, as a new provision of the Fair Practice Ordinance takes effect.
This ordinance, first passed in 1963, prohibits discrimination based on race, age, religion, disability, sexual orientation, and gender identity in employment, housing, public accommodations, and other activities. Since then, it’s been amended to include accommodations and other protections based on gender and immigration status, and for women who are pregnant or breastfeeding.
A new provision for menstruation, perimenopause, and menopause takes effect Jan. 1. There is no general small-business exemption, and the rules generally impact employers with as few as one employee.
Symptoms ‘substantially interfere’
The new provision requires employers to provide reasonable workplace accommodations when the symptoms of menstruation, perimenopause, or menopause “substantially interfere” with an employee’s ability to perform one or more job functions, says employment attorney Caroline Austin of Duane Morris. These might include flexible rest breaks, temperature adjustments, use of fans, relaxed dress code requirements, or remote or hybrid work arrangements.
The ordinance doesn’t define “substantially interfere,” attorney Steven Ludwig of Fox Rothschild wrote earlier this year. But Ludwig offered examples such as when “period pain is so severe that a retail worker cannot stand for her shift, or if hot flashes prevent a food service worker from staying in the kitchen.”
Women make up almost half of the workforce, and women over the age of 40 are over a quarter of all workers. It’s important that businesses ensure that the needs of these employees are addressed.
“Given that menopause disproportionately affects women over 40, employers should be mindful that mishandling these situations could also implicate protections under federal sex-discrimination and age-discrimination frameworks,” Austin said.
Christiana Signs, a labor attorney at Reed Smith in Philadelphia, warns employers not to assume symptoms are simply a result of aging.
“They can have many causes, and some can trigger legal obligations under laws like the ADA,” she said. “Train managers to listen, avoid dismissive comments, and contact HR promptly.”
Engaging, not ignoring
Signs also warns that denying an accommodation can support a sex- or age-discrimination claim and that employers must be open to discussing these issues with their female employees.
“Do not be afraid of the conversation,” she said. ”Ignoring or breezing past the issue creates more risk than asking what is making work difficult.”
Although a response to any request will depend on the specific circumstances, attorneys advise that employers engage with the employee and not to ignore the issue.
Employers should “thank the employee for raising the concern, ask what support would help, and involve HR promptly,” Signs said. “Then document the request and follow up so everyone understands the next steps.”
Addressing all requests
There’s always a risk that some employees will take advantage of the law to request additional time off. Regardless, attorneys say it’s important to take each claim seriously and err on the side of the caution.
Austin says a common mistake is failing to recognize when an interactive process is triggered by an employee’s disclosure that menstruation, perimenopause, or menopause symptoms interfere with their ability to perform their job.
“Employers should treat any statement by an employee indicating that menstruation, perimenopause, or menopause symptoms are interfering with their work as a potential accommodation request, regardless of the specific language used,” Austin said. “Employers should be sure to educate HR personnel, managers, and supervisors on these protections and on how to respond to employee requests for accommodation.”
Philadelphia exceeds federal protections
Some other cities and states are considering and enacting new workplace protections for menstruation, perimenopause, and menopause, according to Signs.
Current federal law offers some protections for pregnant workers and for conditions arising out of pregnancy, childbirth, or related medical conditions, including menstruation, but it doesn’t cover issues related to perimenopause or menopause to the same extent as the Philadelphia ordinance. Philadelphia’s distinctive feature is its explicit coverage of all three conditions without requiring a pregnancy connection.
“Federal protections for menstruation are framed through the lens of pregnancy-related conditions,” said Austin. ”By contrast, Philadelphia’s amended ordinance offers broader protections.”
To comply with the Philadelphia law, Austin says employers must be prepared to work collaboratively with their employees to identify reasonable accommodations.
Preparing for the new requirements
Employers who don’t comply with this new law are exposing themselves to significant risk.
Signs is advising her clients to review their policies now so that they’re ready ahead of the beginning of the year. The amended Philadelphia ordinance also expressly prohibits retaliation against employees for exercising their right to request accommodations for menstruation, perimenopause, and menopause. She specifically recommends written anti-retaliation protections and clear reporting procedures.
“Employers can mitigate the risk of these types of claims by prohibiting retaliation in writing,” she said.
They should also provide multiple ways for employees to report concerns, she said, separate people handling accommodation requests from those evaluating performance if possible, train managers on the rules, and document all requests and responses to them.
