To attract talent by offering expanded family building and reproductive care benefits, a growing number of employers are looking to add benefits tailored for employees who are experiencing menopause and perimenopause (the time leading up to menopause).
Here are the key benefits and employment questions that employers have asked that relate to menopause coverage.
Would menopause benefits be subject to the Employee Retirement Income Security Act? Probably. Employers take different approaches to building out a menopause benefit, but most companies offer direct payment or reimbursement of employee medical expenses through an existing major medical plan or on a pay-as-you-go basis.
Benefits might include coverage for specialized physical therapy, access to menopause-specific medical practitioners, and discount programs for common medications to relieve menopause symptoms. To the extent the employer is paying or reimbursing employee medical expenses, the program constitutes a group health plan covered by ERISA.
Benefit vendors in this space commonly offer management of a dedicated reimbursement account for employees to access for payment of menopause-related expenses with a lifetime cap on eligible expenses. Employers should realize that even if the benefit is structured as a taxable reimbursement program and offered separately from the major medical plan, the program is still an ERISA-covered group health plan and should be treated as such.
We can't administer a dedicated menopause benefit under our major medical plan. What are our options? This issue might come up if the major medical plan is fully insured and the employer doesn't have control over the coverage terms. This also can come up if the medical plan is self-insured, but the plan's third-party administrator can't administer the proposed menopause benefit.
If the major medical plan is fully insured, the menopause benefit vendor likely will require the employer to establish a separate health reimbursement arrangement to make the reimbursements for menopause-related expenses. If the plan is self-insured, the employer may treat medical expense reimbursements as a component of its major medical plan, or the employer may establish a separate HRA for that purpose.
What are the consequences of setting up a separate HRA for menopause expenses? These group health plans are subject to Patient Protection and Affordable Care Act market reforms. To comply with ACA rules, the HRA generally must be structured as an integrated HRA or an excepted benefit HRA.
To satisfy the requirements for an integrated HRA, the individual must be enrolled in group health coverage (through the employer or another plan) that is ACA-compliant, and the employer must offer the HRA alongside other group health coverage that isn't limited to excepted benefits. If the employer offers an excepted benefit HRA, there are fewer regulatory requirements; however, the reimbursement limit is $1,800 per year (indexed).
Like any other group health plan, HRAs are subject to ERISA's reporting and disclosure requirements, COBRA obligations, privacy laws, and mental health parity rules. While benefit vendors may present a separate HRA for menopause benefits as an "easy" solution, several boxes need to be checked before rolling out the benefit.
We have a high-deductible health plan. Can we offer menopause benefits? Yes, menopause benefits can be covered under such a plan, the same as any other medical expense subject to the participant meeting the IRS minimum deductible.
If a separate HRA from the major medical plan reimburses menopause-related expenses, it can't reimburse any expenses for menopause benefits before the individual hits the IRS minimum deductible for the year. If that happens, the individual may lose eligibility to make contributions to their health savings account.
Do federal accommodation and leave laws apply to an employee experiencing menopause? To date, federal guidance on workplace accommodations indicates that menopause is a normal consequence of human aging and therefore not considered to be a disability under the Americans with Disabilities Act.
Nonetheless, certain menopause-related symptoms (such as severe hot flashes, migraines, or depression) that substantially limit one or more of the employee's major life activities may qualify for ADA coverage.
The US District Court for the District of Maine in Mullen v. New Balance Athletics declined to dismiss an employee's ADA claim in the context of early menopause, concluding that an issue of fact existed as to whether the employee's early menopause symptoms rendered them covered under the ADA.
The Family and Medical Leave Act also might apply to employees suffering from menopause-related symptoms. In those circumstances, symptoms that constitute an impairment or physical or mental condition that involves inpatient care or continuing treatment by a health-care provider may meet the serious health condition definition under the FMLA.
The Pregnant Workers Fairness Act of 2023, which requires workplace accommodations for pregnancy and related medical conditions, also may cover menopause. Under the Equal Employment Opportunity Commission's final regulations, issued in April, menstruation falls under the definition of "pregnancy, childbirth, or related medical conditions" protected under the PWFA.
Whether menopause and perimenopause relate to menstruation and are related medical conditions may be decided by courts or in future clarifications from the EEOC, which advises in its guidance that determining whether a medical condition falls under the PWFA is "on a case-by-case basis."
Is menopausal status a protected characteristic under federal anti-discrimination and non-harassment laws? It's not expressly protected under federal law. However, comments and remarks related to menopause could give rise to sex and/or age harassment claims.
The EEOC included a menopause-related example in its 2024 enforcement guidance on workplace harassment, explaining that comments about an employee's hot flashes, referring to an employee's mistake as a "menopausal moment," and asking the employee if they could take medication for hormones were prime examples of "intersectional harassment" based on sex and age.
Employers should be cognizant of employment law issues that may apply depending on an employee's circumstances, and they should track future guidance from the EEOC, state, and local governmental agencies and courts on this subject. Employers looking to add menopause benefits should be mindful of the potential ERISA implications and need for careful planning in this area to address benefit compliance obligations.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Jennifer Rigterink is senior counsel in Proskauer's labor and employment law department and a member of its employee benefits and executive compensation group.
Jurate Schwartz is senior counsel in Proskauer's labor and employment law department.