On May 17, the Spanish Government took a historic step forward in terms of equality and non-discrimination. Thanks to the impetus of the Ministry of Equality headed by Unidas Podemos, Spain will have the most advanced legislation regulating the right to sexual and reproductive health in Europe. To this end, the Government gave the green light to the regulatory process of a reform that will expand the right of women to decide about their own bodies, strengthen sex education, recognize surrogacy as a form of violence against women and regulate menstrual health in terms of labor.
One of the most discussed issues regarding this reform has been the regulation of temporary leave derived from incapacitating periods, opening a debate in political and even trade union circles about whether the proposed regulation could end up aggravating discrimination in labor hiring. Thus, the effects of menstruation on women’s lives have for the first time been the subject of talk shows and debates in the media, breaking the taboo on the issue.
For days, we have been listening to the list of aches and pains suffered by women and menstruating people, including abdominal cramps, nausea, fatigue, fainting, headaches, back pain, and general malaise or migraines. With all this, once a month and 480 times in our lifetime we go to work with disabling pain, generating a “presenteeism” (working in sub-optimal conditions) that far exceeds absenteeism and has a considerable impact on occupational health and productivity of companies.
Despite the fact that it is a situation that can affect half of the world’s population, menstrual health is still shrouded in stigma, shame, and stereotypes in almost all countries of the world. Neither labor law nor social security regulations have specifically addressed these situations. On the contrary, occupational health policies were usually developed through supposedly “neutral” norms (based on the experience of male workers and ignoring the different reality of women’s health) or occupational health and safety policies that considered women from a protectionist perspective, as a weak group and focused on the protection of pregnancy and maternity. Menstruation, as a situation to be considered per se, has been little present in legal debates.
In fact, some previous regulatory experiences have had poor results. Specifically, Japan passed a law concerning menstruation at work in 1947; South Korea grants women one day of leave for menstruation and Taiwan three days; in Indonesia two. In addition, similar policies have been adopted in some provinces in China. Several reports point to the difficulties of implementing these linked rules and their relationship with discriminatory practices or even violations of women’s rights, all of which are probably related to faulty regulation and corporate malpractice. Some authors, in view of the poor results, described these practices as “benevolent sexism”.
The debate in other countries, such as France, the United Kingdom, and Australia, has been opened up by the experiences of various companies that have implemented work organization models compatible with the protection of menstrual health (also including menopausal periods) and that report consistent success rates both in terms of increased productivity and improved well-being of those who take advantage of these leaves. For its part, the Italian parliament debated in April 2016 a bill entitled “Establishment of leave for women suffering from dysmenorrhea”.
The proposal, which was never approved, provided for the right to be absent from work for a maximum of three days per month for women suffering from dysmenorrhea that prevents the performance of ordinary daily work duties, a condition that had to be ascertained in an annual medical certificate. This “menstrual leave” would be covered by the State with a benefit equal to the salary. In addition, some collective bargaining agreements, in Spain or Argentina, regulate leave that can be taken by women workers, with little success.
The Spanish proposal is undoubtedly the most complete and focuses on the protection of menstrual health within the scope of the employment contract, as a right within occupational health. To this end, it recognizes the right to special temporary incapacity for women with painful periods that renders them unable to work, with no maximum number of days as indicated in the mandatory medical report, at the expense of the social security, paid from the first day of sick leave and with no prior contribution requirements. There will be, therefore, no economic burden for the employer.
In view of the regulation of this menstruation leave, it has been argued that focusing on how menstruation affects the work capacity of a significant number of women during certain days of the month would mean recognizing a weakness and could imply a business reaction, a sort of backlash (which we have already gone through) that could deepen the preference for male hiring.
To rule out or minimize this possibility, it is necessary to remember that measures such as the menstrual leave cannot be isolated legal devices, but must be combined with a real equality policy in terms of rights linked to care, and particularly to maternity and paternity, based on co-responsibility; a strong anti-discrimination regulatory structure that sanctions sexist behavior in the workplace; a powerful educational effort to make it clear to the business community that equality in companies is a right (and is also positive for productivity) and a commitment to social dialogue for its proper development. For menstrual health to enter companies, the State must promote these measures and the business community must internalize the need to protect it.
The proposal of regulations such as the Spanish one is per se an enormous step forward in the legal, symbolic and cultural spheres, making visible and verbalizing a reality and a need that has historically been overshadowed. It opens a path that can be an example for Latin America, accompanying the steps forward in the decriminalization of abortion and the processes towards the recognition of equality and the prohibition of discrimination in labor relations. Evidently, there are many obstacles to overcome in many aspects. In our region, co-responsibility is scarce (women’s unpaid or care work time is much greater than the time spent by men) and this hampers female employment and perpetuates inequalities.
Moreover, it is well known that in Latin America, people working without the legal guarantees associated with an employment contract (so-called informal work) represent more than half of the labor force, which makes it difficult to implement equality measures such as the aforementioned ones. In addition, the permanence of stigma and taboo regarding menstruation, which in popular jargon is still identified with a disease, is equally clear.
Fortunately, the power of the women’s movement in the region is enabling the normative advances that make us move towards achieving a fairer society, where no one has to go to work suffering from disabling pain and where menstruation is part of everyday life, free of stereotypes, stigmas, and discrimination.
Translated from Spanish by Janaína Ruviaro da Silva
