Is Menopause a Disability that Requires Accommodation?

Is Menopause a Disability that Requires Accommodation?

The Menopause Foundation of Canada recently released a reported, entitled Menopause and Work in Canada, which estimates that the economic impact of menopause maybe be approximately 540,000 lost days of work. Roughly five million of Canada’s workers are women over the age of 40, the age range most likely to experience menopause, and the cohort that is expected to grow significantly over the next 15 years. With menopause creating such a significant effect on workplaces, employers have certain obligations to ensure that their employees’ rights are protected. For example, is menopause a disability that requires accommodation?

Is menopause protected under human rights law?

Menopause is not a protected ground under human rights law – meaning that it is not a personal characteristic that creates protection from discrimination. However, it is the symptoms that are associated with menopause – such as low mood or energy, pain and physical limitations, and sleep issues – that cause the primary workplace disruptions. As such, these symptoms constitute disability, which is a protected ground.

Is menopause a disability that requires accommodation?

This means that employees experiencing menopause have the right to be reasonably accommodated for any restrictions associated with these symptoms to the point, and the employer may not unjustly deny any such accommodations. Furthermore, employers cannot punish or retaliate against employees seeking these accommodations, a key protection given that the MFC found that over two thirds of women would not feel comfortable speaking to their supervisor or a human resources person about experiencing symptoms.

What to expect under common law notice periods?

Employers cannot refuse to hire a candidate on the grounds that they are experiencing menopause, as this would constitute a violation of their human rights. However, courts recognize that even despite this protection, it is difficult for both older employees and employees who have disabilities to find comparable jobs once they have been terminated from their employment. Therefore, courts tend to find that such employees are entitled to longer periods of reasonable notice upon termination.

Given that women experiencing menopause are both more likely to be older relative to the Canadian workforce and experiencing disability, these characteristics will be significant factors in increasing their reasonable notice entitlements upon termination.

How can Whitten and Lublin Help?

If you are an employee experiencing menopause, you can learn more about your rights to accommodation by contacting Whitten & Lublin online or by phone at (416) 640-2667.

Author – Aaron Zaltzman