COLUMNS/INEQUALITY
Menstruation and the right to work pain-free

Guaman Worship
Wednesday, June 1, 2022

The recently approved reform in Spain that enables temporary disability due to disabling menstrual periods meant that the effects of menstruation on women's lives starred for the first time in gatherings and debates in the media, breaking the taboo of the issue, not only in Spain but in different parts of the world. The installation of this conversation in Latin America brings up the lack of legal guarantees that women experience in the workplace, which make the application of regulations like this unfeasible.

On May 17, the Government of Spain took a historic step in terms of equality and non-discrimination. Thanks to the impulseof 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 processing of a reform that will expand the right of women to decide on their own body, strengthen sex education, recognize surrogacy as a form of violence against women and regulate menstrual health in labor terms.

One of the most discussed issues regarding this reform has been the regulation of a temporary disability derived from disabling rules, opening a debate in political and even union spheres regarding whether the proposed regulation can end up aggravating discrimination in labor contracting. Like this

For days we have heard how the set of pains that women and menstruating people suffer were listed and that include abdominal cramps, nausea, fatigue, feeling faint, headaches, back pain and general malaise or migraines. With all this once a month and 480 times throughout our lives we go to work with disabling pain, generating a "presenteeism" (work in non-optimal conditions) that far exceeds absenteeism and that has a considerable impact on occupational health and productivity of companies.

Although it is a situation that half of the world's population can go through, menstrual health is maintained in almost all countries of the world in an area covered by stigma, shame and stereotypes. Neither labour law nor social security rules have specifically addressed these situations. On the contrary, occupational health policies were usually developed through supposedly "neutral" standards (based on the experience of male workers and ignoring the different reality of women's health) or health and safety policies at work 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 of the previous regulatory experiences have yielded poor results. Specifically, Japan passed a law on menstruation at work in 1947; South Korea grants women one day of menstruation leave and Taiwan three days; in Indonesia two. In addition, similar policies have been adopted in some provinces of China. Several reports point out the difficulties of implementing these related norms and their relationship with discriminatory practices or even violations of women's rights, all of which is probably related to flawed regulation and business malpractice. Some authors, in view of the poor or poor results, described these practices as "benevolent sexism".

The debate in other countries, such as France, the United Kingdom or Australia, has opened up in line with the experiences in various companies that have implemented work organization models compatible with the protection of menstrual health (including also the periods of menopause) and that report constant success rates both from the point of view of increasing productivity and improving the well-being of people who take advantage of these permissions. For its part, the Italian parliament debated in April 2016 a proposed law entitled "Establishment of permits for women suffering from dysmenorrhea".

The proposal, which was not approved, contemplated the right not to go to work a maximum of three days a month to women who suffer from dysmenorrhea that prevents the performance of ordinary functions of daily work, a condition that had to be verified 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 agreements, in Spain or Argentina, regulate permits recoverable by workers, with little success.

The Spanish proposal is undoubtedly the most complete and focuses on the protection of menstrual health in the field of employment contract, as a right within occupational health. To this end, the right to a special temporary disability is recognized for women with painful menstruations that incapacitate them to work, without a maximum of days as indicated in the mandatory medical report, in charge of the social security, paid from the first day of leave and without prior contribution requirements. There will therefore be no economic burden on the entrepreneur.

Given the regulation of this sick leave due to menstruation, it has been stated that focusing on how menstruation affects the ability to work of a good number of women during certain days of the month would mean recognizing a weakness and could imply a business reaction, a kind of backlash (through which we have already traveled) that could deepen the preference for male hiring.

To rule out or minimize this possibility, it is necessary to remember that measures such as this cannot be isolated legal devices but must be combined with a good policy of equality in terms of rights linked to care, and particularly to maternity and paternity, based on co-responsibility; a strong anti-discrimination regulatory structure, which punishes sexist behaviour at work; a powerful pedagogical work that shows among the business community that equality in companies is a right (and it is also positive for productivity) and the commitment of social dialogue for its proper development. That menstrual health enters companies requires that the State promote these devices and that the business community internalizes the need to protect it.

The proposal of regulations such as the Spanish one is per se a huge step forward in the legal, symbolic and cultural that allows to make visible and verbalize a reality and a need historically overshadowed. It opens a path that can be an example for Latin America, accompanying the steps forward in thedecriminalization of abortion and the processes towards the recognition of equality and the prohibition of discrimination in labor relations. Obviously, the obstacles to overcome are considerable in many respects. In our region, co-responsibility is scarce (women's unpaid work or care time is much longer than the time spent by men) and this weighs on female recruitment andperpetuates inequalities.

In addition, it is well known that, in Latin America, people who work without the legal guarantees linked to the employment contract (the so-called informal work) represent more than half of the labor force, which makes it difficult to apply measures such as the one mentioned. In addition, the permanence of the stigma and taboo regarding menstruation, which in popular slang is still identified with a disease, is equally clear.

Fortunately, thepower of the feminist movement in the region is allowing the normative advances that make us walk towards the achievement of a more just 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.


* Adoración Guamán is a political scientist and jurist. Professor at the University of Valencia. Coordinator of the CLACSO WG 'Lex Mercatoria, Human Rights and Democracy'. Founding member of CLAJUD (Latin American Council of Justice and Democracy).

*www.latinoamerica21.com, a plural media committed to the dissemination of critical opinion and truthful information about Latin America. Follow us on @Latinoamerica21

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