Menstrual Leave Redux

By Fiona Ong - Shawe Rosental LLP

May 12, 2023

Way back in 2016, I wrote a blog post on menstrual leave, in which I suggested that menstrual leave (the concept of giving women up to 3 or so days of leave during THAT time of month) was not necessary for all women. Interestingly, this post struck a nerve and I received a number of hate emails about this post from people who suffer from extreme menstrual pain and WHO OBVIOUSLY DID NOT READ THE ENTIRE POST.

Specifically, I had stated:

    “Now I know that menstrual pain can be debilitating for some women and, for some, can even constitute a medical condition of dysmenorrhea. Under those circumstances, those women would likely be covered under the Americans with Disabilities Act (and its expanded definition of “disability”) or analogous state laws, and entitled to reasonable accommodations, which could include leave. They may also be entitled to leave under the Family and Medical Leave Act, which requires employers with 50 or more employees within a 75-mile radius to provide leave to eligible employees for a serious health condition (as dysmenorrhea may be).”

(Really, how much more clear could I be? Those emails have always ticked me off… )

In that post, I also noted that some Asian countries (Japan, Philippines, South Korea, Indonesia and Taiwan) had passed laws requiring employers to offer leave on a monthly basis to all menstruating women. I observed that the laws were controversial, that their effectiveness has been questioned (in that many employers don’t comply or women are afraid to take the leave), and that some commentators suggest there may be unintended consequences (e.g. by perpetuating stereotypes, increasing costs for employers, and/or exacerbating the gender pay gap where such leave is unpaid).

Since I wrote that blog post, Vietnam has passed a similar law, while Zambia now provides that all women may take off one day per month for any reason without medical certification. But no Western country has legislated this issue – until now.

As reported by the Society for Human Resource Management, Spain has recently passed a law that provides menstrual leave, which will be paid by the government at 75% of the employee’s covered earnings out of Social Security. Now, to my point about not all women requiring such leave, this new type of leave is not available willy-nilly to all women. In addition to certain Social Security contribution requirements, SHRM notes that the employee must be “experiencing incapacitating menstruation caused by a previously diagnosed pathology.” In other words, it seems that a doctor will have to certify both the severity and the history of the condition. (This is quite in line with my observation above that, here in the US, employees might be entitled to leave for debilitating menstruation under the ADA and FMLA. Just saying.)

It will be interesting to see how this plays out in Spain and whether other Western nations will follow their lead. But for now, (like the Spanish) I still stay that menstrual leave is not necessary for everyone. Period.

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