A menstrual leave policy provides paid or unpaid leave for employees experiencing menstrual pain or other related health issues. While no federal law currently mandates menstrual leave, existing federal and state laws affect employer obligations and employee rights surrounding menstrual health. This article examines those laws and provides guidance for employers looking to lawfully accommodate menstrual health at work.
Existing Legal Framework
Title VII of the Civil Rights Act of 1964 is a federal employment law prohibiting discrimination against current or former employees and job applicants based on protected characteristics, including sex. You can’t discriminate based on a protected characteristic in hiring, termination, compensation, privileges of employment, or the terms and conditions of employment. Discrimination “because of sex” is defined broadly and includes discrimination based on:
- Gender
- Pregnancy, childbirth, or related medical conditions
- Sexual orientation and gender identity
An employer that voluntarily offers paid menstrual leave only to female employees may create a Title VII risk because paid leave is an employment benefit and eligibility turns on sex. Such a policy could also constitute disparate treatment if an employer intentionally treats an employee less favorably because of a protected characteristic.
Federal Laws Providing Leave
Americans with Disabilities Act (ADA): Although federal law doesn’t create a general right to menstrual leave, qualifying menstrual health conditions may entitle employees to certain accommodations or specific time frames for time off. For example, the ADA is broad enough to address conditions like endometriosis, severe dysmenorrhea, or premenstrual dysphoric disorder (PMDD), depending on how substantially they limit the particular employee’s major life activities or bodily functions.
Under the ADA, a “disability” is an impairment that substantially limits a major life activity, including major bodily functions like reproductive functions. Whether an impairment substantially limits a major life activity is an individualized inquiry. An episodic or short-term impairment may qualify depending on its effects when active. So, while ordinary menstruation may not qualify, certain related menstrual health conditions may.
To ensure compliance, you should review existing policies relating to the ADA to ensure they provide a simple process for employees to request a reasonable accommodation. You should also be mindful of your obligations to engage in the ADA’s required interactive process once a request is made. Employers engaging in this process should consider reasonable accommodations like schedule flexibility, remote work, breaks, or light duty, absent undue hardship on the business.
Pregnant Workers Fairness Act (PWFA):The PWFA requires covered employers to provide reasonable accommodations for known limitations related to “pregnancy, childbirth, or related medical conditions,” absent undue hardship. Reasonable accommodations may include modified work schedules, rest and restroom breaks, telework or remote work, and paid or unpaid leave for treatment.
Notably, under the final Equal Employment Opportunity Commission (EEOC) regulations, examples of “related medical conditions” include endometriosis, menstruation, and changes in hormone levels. So, you should be mindful that a menstruation-related accommodation can, in principle, support a PWFA accommodation.
Family and Medical Leave Act (FMLA): The FMLA provides eligible employees with up to 12 workweeks of job-protected unpaid leave for a “serious health condition,” defined as an “illness, injury, impairment, or physical or mental condition that involves” inpatient care in a hospital or continuing treatment by a healthcare provider. When medically necessary, this leave may be taken intermittently to cover periodic flare-ups. While routine menstruation doesn’t typically meet the “serious health condition” standard, covered employers should be mindful that the FMLA may apply to certain menstrual health-related conditions.
Other Leave Options to Consider
Depending on the jurisdiction, state or local paid sick leave may provide the simplest avenue for short-term menstrual-symptom leave because it commonly permits use for any physical or mental health condition—broad enough to cover menstrual symptoms—and generally doesn’t require a doctor’s note for short absences.
For example, under Arizona’s Fair Wages and Healthy Families Act, employees may use earned paid sick time for their own mental or physical illness, injury, or health condition or for the diagnosis, care, or treatment of such a condition, which may be broad enough to cover menstrual symptoms.
Best Practices to Lawfully Accommodate Menstruation
A dedicated menstrual leave benefit specifically restricted to women or female employees creates meaningful Title VII risk because paid leave is an employment benefit and eligibility turns on sex. However, conversations about menstrual leave can prompt employers to evaluate workplace culture and accommodations surrounding menstrual health while reminding employees of federal and state laws potentially supporting their health needs. In particular, employers wanting to address this issue should:
- Structure applicable employment policies (e.g., sick time, wellness, vacation, remote work, etc.) using gender-neutral eligibility criteria;
- Review and, if necessary, revise existing policies to ensure they’re flexible enough to allow for the use of short-term time away from work for menstrual health without being discriminatory;
- Educate employees about potential leave options under existing company policies and local laws;
- Offer reasonable accommodations, such as intermittent remote work, flexible start times, breaks, or schedule modifications, when appropriate; and
- Adopt workplace measures that make menstrual health easier to manage at work (for example, stocking restrooms and breakrooms with menstrual products or providing a private rest area for employees who need a short period away from their workstation).
Olivia Turner is a second-year law student at Arizona State University. Emily E. Brodner (associate) and Juliet S. Burgess (founding partner) are attorneys at the Burgess Law Group specializing in labor and employment law, intellectual property, and commercial litigation. www.theburgesslawgroup.com