Women’s Health in the Workplace Q&A & Resources

13th May 2022

By Sophie Vanhegan, Naomi Seddon and Alison Sneddon

On International Women's Day we held a webinar with Wellbeing of Women (leading UK women’s health charity and innovator behind the Menopause Workplace Pledge) to discuss the importance of supporting women’s health in the workplace has opened up a lot of interesting questions from clients. There’s so much more to explore in this area (see our article with predictions on what’s coming next in this area and more resources below) though let’s take a look at our views on some of the frequently asked questions – covering all from fertility leave strategies, painful periods and DEI strategies!

We’ve also included a list of handy resources below.

Miscarriage & Fertility Leave

Q1: Do companies providing miscarriage leave offer this to both birth mothers and their spouse/partner?

Our experience is that some employers globally do provide this benefit to spouses and partners through policy. However, even where companies do not offer this benefit to spouses and partners explicitly in their policies, in practice employers will consider allowing this.

In the US where they have introduced forms of miscarriage leave it is provided to the birth mother only. It’s common for company policies in the UK to follow the same approach. In Australia and New Zealand on the other hand, the leave is provided to spouses and partners as well and therefore company policy mirrors the entitlement. Nonetheless, globally, where we have seen companies implement paid miscarriage leave, savvy HR and management teams recognise the impact that a miscarriage can have on the spouse/partner and, practically, may extend this leave to those individuals too even where the law does not require it. It’s also worth bearing in mind that if your organization has a dependent’s leave or compassionate leave policy, the spouse/partner may request time off under that policy.
As a catch all option, some employers simply take the approach of referencing miscarriage in their broader leave policies (i.e. compassionate leave) and asking any affected employees to speak to HR about their options and support available to them. This gives a degree of flexibility and encourages HR involvement at an early stage to ensure that appropriate support is put in place for that individual.

Q2: What are the data privacy risks around asking employees to open up about taking time off for fertility leave / treatments (as opposed to bringing this under the umbrella of sick leave)?

There are some data privacy risks (i.e. ensuring employee’s consent to sharing this information and it is kept confidential insofar as possible) though these are generally manageable and taken on by employers for the benefit of achieving greater transparency and support in this area.

Encouraging individuals to open up about their experiences with fertility treatments does mean that employers will be privy to more sensitive personal data relating to medical matters, which needs to be managed carefully. This should be made available on a need-to-know basis only to relevant HR and management team members and employers should ensure that the team at large are not made aware that the individual is on “fertility leave” unless the individual states that this is their wish. In practice, this is manageable for most employers.
An alternative would be to avoid encouraging employees to open up about their fertility needs and to instead leave employees to manage this matter by making use of sickness absence policies. This approach has various pitfalls. You lose the employee relations benefit of demonstrating to your workforce that you are supporting those going through fertility treatments. This may exacerbate the already existing taboo around fertility treatments and result in the employee feeling that they need to hide their experience. This can be incredibly unhelpful, particularly if elevated absence levels (and a potential knock-on impact on behaviour and performance at work) are, from the managers perspective, unexplained. In a worst case scenario, this could result in the employee being disciplined or performance managed when an opportunity for support had been missed (i.e. via Occupational Health referrals or accommodating time off under a fertility leave policy).
Overall, a lack of knowledge about the individual’s fertility matters would avoid the data privacy issues mentioned above (albeit, these can be managed in practice) and could reduce litigation risk for sex or pregnancy discrimination claims (i.e. you can’t discriminate against someone for an issue that you don’t know about, though practically this risk can be mitigated in other ways). However, this approach opens up broader practical risks from an employee relations perspective and may also present attrition risk of key talent. Employers therefore need to take a judgment call on what their preferred approach is bearing in mind their broader DEI goals.

Q3: If a female employee is going through or planning to go through fertility treatments, is planning an overseas adoption or surrogacy arrangement and qualifies for a leave (for example, FMLA in the U.S. or personal or parental leave in Australia) should the leave be granted if the treatments are outside of the home country?

This is a complex question and will require an analysis based on local law as well as the individual circumstances. It is difficult to provide a clear answer on this through policy because there are so many variables here. As such, we recommend providing more general statements in policies and asking employees to discuss their situation with the company to determine what is both legally required and possible, in the circumstances, by the Company. Additionally, there are also strict laws that apply around fertility treatments, adoption and surrogacy and these differ significantly from one country to the next (and within countries, from one state to another). These are also matters that companies must consider when electing to implement both discretionary company leave and benefits policies for these types of treatments in addition to accommodating employee statutory leave requests.

Specific Women’s Health Matters

Q4: Our employee keeps taking time off sick for painful periods but they do not have a diagnosis. Do they qualify for employment protection?

This depends on the laws of the particular jurisdiction (which should, of course, be checked for particular cases) though at a high level you need to be aware of:

- Disability discrimination claims – generally, without a diagnosis, the employee is unlikely to have specific legal protections in some countries but not all; and

- Sex discrimination claims – generally, provided that you would treat a male with similar absence levels in the same way, managing this via a fair absence management process is likely to be low risk in many countries but again not all. For example, in Australia and New Zealand, where employees are entitled to take leave when they are unwell it is generally unwise to discipline for absences because of the protections that exist at law. Additionally, employees can simply provide a medical certificate or a statutory declaration to support their absence and taking disciplinary action against an employee when they have taken protected leave can result in an adverse action claim. Therefore, in some countries, issues regarding excessive leave must be managed very carefully.

There’s also a bigger picture to consider. Gynaecological issues take notoriously long to diagnose, often because the only way of receiving a firm diagnosis is via invasive surgery of reproductive organs which requires a strong risk benefit analysis to be conducted before embarking upon. It’s estimated that it takes an average of 8 years for a woman to be diagnosed with endometriosis – a condition currently estimated to affect 10% of women which causes severe pelvic pain and often debilitating period pains. Whilst this does not do much to change the legal position, it is worth employers bearing these factors in mind from an employee relations perspective particularly where there is a risk of losing key talent if additional support measures are not considered. As such, in some cases it may be more appropriate when assessing whether a medical issue exists that entitles the employee to certain leave benefits and protections at law, for employers to focus on the steps that an employee is taking to actively seek medical assistance and treatment options, rather than the mere fact of whether a formal medical diagnosis has been received.

Q5: What about mental illnesses that are extra prevalent in women- such as eating disorders? And best practices for supporting women with depression?

The statistics globally demonstrate that there are a number of health issues that impact women in greater numbers than men. This is why employers are being encouraged to find better ways to support their female population to manage these issues and, in turn, to perform successfully at work.

There are a number of ways that employers can do this but developing the right policies, benefits and practices takes work because there isn’t a one-size-fits-all approach that is appropriate for every workplace in every country. As such, we recommend first doing the research to determine what is appropriate, what role does culture play, the legal landscape, what other countries are doing in your market and industry and what the ultimate goals of the organization are. This will assist you to develop your strategy, some options and a timeline for implementing changes to your existing policies and benefits plans.

There are a number of other items that we consider key, including:

Training of managers
Training of employees
Encouraging more open conversations through training, policies, workshops and information sessions
Implement tools to educate such as seminars, providing access to resources and through training – this in turn will encourage more conversation.
Consider mentoring programs, focus groups, employee feedback surveys and other forums where these topics can be discussed and brainstormed.

DEI Strategy

Q6: What's one strategy to recruit and retain female talent to positively impact DEI?

There is no one-size-fits-all approach, though:

On recruitment, many employers are opting to take a more proactive stance in publishing their family friendly (i.e. maternity, paternity and parental leave policies) in a visible spot on their recruitment websites rather than leaving job applicants to ask for this during the recruitment process (which they often will not for fear of not looking dedicated to the role). This approach may actually help recruit key male and female talent, recognising that there are also male caregivers who are interested in utilising these benefits.

Highlighting tangible examples of female employees within your organization who have flexible work arrangements, have been promoted during pregnancy or who have been supported through their fertility journey for example send powerful messages to candidates about the type of organization that you are and why female candidates should consider employment with you. This can be demonstrated through stories shared by your existing employees.

Q7: Do you have any recommendations on how to advocate for improving women's health in the workplace to leadership?

The key to advocate and develop the business case for better support of women’s health internally, particularly at Board level, is backing up the proposal with a good range of measurable data. This should be data that demonstrates the detrimental impact of these issues on the business / economy such as the alarming statistics on the number of women leaving, or expected to leave, the workplace due to menopausal symptoms and the tangible costs of this or examples of positive case studies in other organisations (data consistently shows that companies with female leaders outperform those dominated by men). The data should also include the estimated costs of implementing benefits as well as the cost savings that will be seen in other areas. One way of developing this data so that it is usable and relatable is to look at what other organizations are doing and the cost/benefit ratios that they have experienced as a result. See our Resources section below for some additional tips on where to find useful data points.

Q8: How can DEI programmes address women's health matters effectively?

It’s key to know your blindspots and work with organisations and experts who have experience in navigating the complexities in this area and who are able to assist you to tailor your DEI programmes to fit your organization and your needs. HR and management teams are not expected to be fertility, menopause or medical experts! Engage with local charities and organisations working in this area. Many offer training and guidance and you can use this as an opportunity to run your DEI strategy by them to get their views on alternative approaches and any blindspots. We also encourage you to discuss these types of initiatives with colleagues within other companies to learn about what has worked well and what they would do differently. You can also make use of any resources and information available to you from your occupational health and benefits providers and there are also a lot of useful resources available publicly on websites such as LeanIn, The Pink Elephant’s Network, CircleIn, The Women’s Agenda, Forbes Women, Culture Amp and many more.

Virtual Working and Women's Health

Q9: How can employers support women's health in the work from home workplace?

This really comes down to the broader issues with supporting employees in a virtual environment – encouraging open conversations, having points of contact for employees to reach out to and making sure that information is shared across the team and regularly checking-in/wellness checks. Employers who have run specific training sessions on women’s health (such as family planning, fertility and menopause) often find that teams have taken it as an opportunity to connect and create support groups within the workplace which can help build better team communication, understanding and empathy – which creates better work environments even within in the virtual workplace.

Resources

Link to our webinar with Wellbeing of Women on Women’s Health in the Workplace.
Our article on the global complexity of surrogacy benefits.
Wellbeing of Women, a leading UK women’s health charity, has published guidance on supporting employee’s with the menopause and factsheets on other women’s health matters.
The Equality and Human Rights Commission Code which gives guidance on support employees going through fertility treatment in the workplace.
Our article here on the increasing focus of the FCA on managing culture and diversity within financial services firms.
The Fawcett Society report on the impact on menopause in the workplace and the economic case for change.
Fertility Network UK which offers employers guidance and training on support employees with fertility matters.
The UK government’s consultation on menopause in the workplace – the reading materials are packed with useful statistics, including from an international perspective.
Our tips on how to support employees going through the menopause.
Our Shareholder Naomi Seddon’s book, Milk & Margaritas, packed full of data and case studies on the need for increased diversity in the workplace.
Recent McKinsey research on women in the workplace for some interesting statistics, particularly around attrition risk.
This interesting report by employee benefits platform Circle In on the impact of menopause in the workplace.
The guidance from the Pink Elephants Network on supporting those who have suffered miscarriage and early pregnancy loss as well as their study with the University of Sydney on this topic.