Should Employers Adopt a Menstrual Leave Policy?
The topic of menstrual leave has come into the spotlight after Pacific Media Network became one of the first New Zealand companies to adopt a menstrual leave policy. Menstrual leave is a form of time off work for people who suffer from menstrual pain (often referred to as period pain). This article explores the contentious topic of menstrual leave and what employers should consider if implementing such a policy.
Pacific Media Network’s menstrual leave policy
In April 2022, Pacific Media Network introduced a menstrual leave policy. The policy allows all E tū union members to take an extra 12 days’ paid leave each year for menstruation and menopause symptoms. This leave is in addition to union members’ existing sick leave entitlement. The Network aims to eventually extend the entitlement to all employees.
Menstruation – still an awkward subject?
Kiwi professional golfer, Lydia Ko, recently hit the headlines when she openly discussed menstruation. During a media interview for a golf tournament, Ms Ko left an interviewer lost for words when she explained to him, she needed some on-course treatment because of back pain she was experiencing during her ‘time of the month’. The incident highlighted how the topic of menstruation continues to be awkward for some.
Ms Ko’s comments ignited a wider debate about the impacts of menstruation and what it means for performance, whether in sport or in the workplace. There is a growing understanding of the effects of menstruation and pre-menstrual syndrome[1] on those who experience it. However, the topic is still one shrouded in taboo and shame and is often hidden behind other ailments.
Approaches to menstrual leave around the world
In 1947, Japan became the first country in the world to introduce menstrual leave as a legal right. Countries including South Korea, Japan, India, and Zambia have since followed suit. However, it is reported menstrual leave is often underutilised in countries even when it is a legal right due to the social stigma attached to menstruation.
Recently, Spain’s Cabinet approved a Bill granting medical leave for those who suffer from severe period pain. This made Spain the first European country to advance such legislation. The Bill entitles employees to as much time off as required, with the state social security system covering the cost for employers.
Some companies, like New Zealand’s Pacific Media Network, have chosen to introduce menstrual leave policies in their workplaces. Other companies allow staff to take time off due to menstrual symptoms under a broader personal or sick leave policy. For example, Australian period product company, Hello Cup, allow its employees to take up to 5 ‘Duvet Days’ every 18 months. Under the policy, staff do not have to disclose why they are taking leave from work.
In New Zealand, there is no legal entitlement to menstrual leave. Therefore, businesses can choose to introduce their own policies, or not.
Can sick leave cover menstrual pain?
Under the Holidays Act 2003, employees are entitled to take sick leave if they are sick or injured. This would include if an employee is unwell due to menstrual symptoms.
Employees are not required to provide information regarding why they require a short period of sick leave. If an employee is sick for three or more days, an employer can request proof of sickness or injury (for example, a doctor’s certificate). However, the employee is not required to provide further information.
A recent Human Rights Commission complaint highlighted the confusion around using sick leave for menstrual pain. The complaint concerned a manager who criticised an employee for using one day of sick leave for period pain. The complainant argued this constituted gender discrimination under the Human Rights Act 1993. The matter was referred to the Human Rights Review Tribunal and the parties reached a confidential settlement.
Many consider the settlement to be an important recognition of the legitimacy of paid sick leave for illness and pain caused by menstruation. However, some argue the case illustrates the need for dedicated menstrual leave that is additional to sick leave. Additionally, despite being able to use sick leave for menstrual symptoms, some people argue employees should not have to use their sick leave for biological symptoms beyond their control.
Menstrual leave – a contentious topic
Arguments in favour
Proponents of menstrual leave argue such leave policies recognise the significant impact menstruation can have and legitimises the pain a significant section of the workforce experience. The provision of leave would not be discriminatory as it is only used as required to deal with temporary incapacity (i.e. others who do not suffer the condition do not need additional leave).
More than half of menstruating people experience some pain around their period, with some estimates putting the figure as high as 84 percent.[2] If an employee is unable to work due to pain or other menstruation symptoms for even one day each menstrual cycle, then, on an average menstrual cycle (noting cycles can vary significantly between individuals) the employee would exhaust all of their statutory sick leave in under 10 months. This means there would be no sick leave available for other periods of injury or illness. Further, women are already at a disadvantage when it comes to sick leave as they are more likely to take sick days to care for children than men, using up their sick leave entitlement faster.[3]
Organisations that have adopted menstrual leave policies have reported numerous benefits. These include improved trust and support in the workplace, higher staff retention, and higher staff productivity.
Although menstrual leave may be a contentious topic, parental leave was once also considered contentious. Many of the same arguments that were historically argued for parental leave are relevant to menstruation leave.
Arguments against
Proponents against menstrual leave argue such leave policies are discriminatory against those who do not menstruate because it allows some employees additional benefits. It is also argued that such leave entitlements could act as a disincentive for employers to hire people who menstruate, further impacting on the equality of a workplace.
Some have argued that introducing menstrual leave could lead to a perception that people who menstruate are less capable of performing their role.
Introducing menstrual leave also raises questions about whether employee should receive additional leave for chronic health conditions that can also impact employees. This is of particular concern to smaller employers who are conscious of the cost of providing this type of additional entitlement on top of other legal entitlements.
It is important to note many menstrual leave policies introduced by companies also cover menopause. Therefore, if companies are considering introducing a menstrual leave policy and the policy does not also cover leave for symptoms of menopause, the policy could arguably be seen as aged-based discrimination.
Conclusion
In New Zealand there is no legal entitlement for menstrual leave. Therefore, businesses can choose to introduce their own policies, or not. The overseas experience has shown some benefits but also that broader social change must take place for any menstrual policy to be effective in its implementation. Stigma around the topic of menstruation is still rife.
Even if a workplace is not ready to have a discussion regarding menstrual leave, it is worth considering how employers can use their experience of flexible working coming out of the COVID-19 pandemic to allow workers to better manage their health and wellbeing. Workplaces could consider allowing employees to work from home in situations where this would be more comfortable, whether this is due to menstruation or not.
If you are an employer looking to discuss the possible implementation of a menstrual leave policy or flexible work arrangements further, please do not hesitate to get in touch with one of our team.
[1] Often referred to as PMS. Symptoms of PMS include physical and emotional changes such as mood swings, tender breasts, food cravings, fatigue, irritability, and depression. Definition retrieved from: https://www.mayoclinic.org/diseases-conditions/premenstrual-syndrome/symptoms-causes/syc-20376780#:~:text=Premenstrual%20syndrome%20(PMS)%20has%20a,some%20form%20of%20premenstrual%20syndrome.
[2] https://www.healthline.com/health/facts-statistics-menstruation#Menstrual-health-and-complications
[3] https://www.stuff.co.nz/business/122825329/lifting-sick-leave-from-five-to-10-days-would-help-women-workers#:~:text=Women%20were%20more%20likely%20to,after%20them%2C%E2%80%9D%20she%20said.
