Menstrual leave: Advancing gender equality in the workplace

The opening up of the workplace and the inclusion of women in a formal manner in the economy has increased since the early 20^th century. Since then, the path to equal access to professional careers, closing the gender gap in relation to remuneration, and equal opportunities for promotion and leadership positions has been a long one, with gradual progress over time. The need to legally provide maternity leave benefits and legally safeguard employment in the context of pregnancy are some contemporary examples.

27 Feb 2023 2 min read Employment Law Alert Article

At a glance

Spain has approved legislation providing menstrual leave for relevant workers, becoming the first European country to recognize this entitlement.
Some employers globally offer menstrual and menopause leave voluntarily, even in jurisdictions without legal requirements, to promote diversity and inclusion.
Employers considering implementing menstrual leave should consider factors such as the duration of leave, medical approval requirements, privacy concerns, and avoiding prejudice or discrimination against employees who take such leave.

Recently, Spain has approved legislation that entitles relevant workers, who have medical approval, to menstrual leave. In the Spanish context, the state’s social security system will be responsible for funding the leave entitlement. Spain is the first European country to join the list of nations that legally recognise menstrual leave in some form (some others include Japan, Indonesia, Taiwan and Vietnam).

As the emphasis on diversity and inclusion in workplaces gains momentum globally, some employers elect to provide their employees with the benefit of menstrual and menopause leave, even in jurisdictions where employees may not be legally entitled to such benefits. While the South African Government and the labour environment more broadly have yet to consider the implementation of menstrual leave or leave entitlements aligned with physiological fluxes such as menopause, the introduction of menstrual leave is a welcome and progressive enhancement of workplace accommodations that recognise forms of temporary incapacity, due to biological processes, such as dysmenorrhea, that affect women. This advances gender equality and normalises menstruation in the workplace and the effects it may have on women.

If an employer is considering implementing a menstrual leave benefit, it is important that it considers all the relevant factors before making a final decision. An employer will need to determine what would be a reasonable leave entitlement and whether this entitlement can be accumulated monthly. Whether an employee will require medical approval to access the leave will also need to be determined. Given that the nature of the leave has implications on privacy issues, employers must be both sensitive to and cautious around requirements for an employee to confirm menstruation or gender identity. In this regard, transgender men and gender non-conforming people may also be entitled to menstrual leave without identifying as women.

Finally, employers should guard against the possibility that menstrual leave may reinforce false and sexist positions relating to workplace productivity and people who take menstrual leave should not be prejudiced in terms of promotion and work opportunities due to an increase in time off from work.

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