On May 17, the government of Spain took a historic step in terms of equality and non-discrimination. Thanks to the impulse 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 has given the green light to the normative process of a reform that will expand women’s right to decide about their own bodies, reinforce 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 was the regulation of a temporary disability derived from disabling rules, opening a debate in political and even union spheres about whether the proposed regulation could end up aggravating discrimination in labor contracts. Thus, the effects of menstruation on women’s lives have featured, for the first time, in talk shows and debates in the media, breaking the taboo on the issue.
For days we have been listening to the range of pains experienced by women and people who menstruate and which include abdominal cramps, nausea, fatigue, feeling faint, headaches, backaches and general discomfort or migraines. With all this, once a month and 480 times throughout our lives we will work with disabling pain, generating a “presenteeism” (working in suboptimal conditions) that far exceeds absenteeism and that has a considerable impact on occupational health and productivity of companies.
Despite being a situation that half of the world’s population can experience, menstrual health remains in an area covered by stigma, shame and stereotypes in almost every country in the world. Neither labor law nor social security rules specifically addressed these situations. On the contrary, occupational health policies are 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 consider women from a different perspective. protectionist, as a weak collective 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 experiments have yielded poor results. In particular, Japan passed a law concerning menstruation at work in 1947; South Korea gives women one day of menstrual leave and Taiwan three; Indonesia two. Furthermore, in some provinces of China similar policies have been adopted. Several reports point to the difficulties of implementing these linked norms and their relationship to discriminatory practices or even violations of women’s rights, all likely related to faulty regulation and corporate negligence. Some authors, in view of the scarce or bad results, have qualified these practices as “benevolent sexism”.
The debate in other countries, such as France, the United Kingdom and Australia, was opened by the experiences of several 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 from the point of view of increasing productivity and improving the well-being of the people who benefit from these licenses. In April 2016, the Italian Parliament debated a bill entitled “Establishment of a license for women suffering from dysmenorrhea”.
The proposal, which was not approved, contemplated the right to be absent from work for a maximum of three days a month for women who suffer from dysmenorrhea that prevents them from performing the 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 and Argentina regulate the licenses recoverable by 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 menstruation that makes them unable to work, without a maximum number of days as indicated in the mandatory medical report, at the expense of social security, paid from the first day of absence and without prior contribution requirements. There will therefore be no economic burden for the employer.
Faced with the regulation of this work leave due to menstruation, it is argued that focusing on how menstruation affects the ability of a good number of women to work during certain days of the month would mean recognizing a weakness and could imply a business reaction, a kind 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 this cannot be isolated legal provisions, 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 framework that sanctions sexist conduct at work; a powerful pedagogical effort that demonstrates to employers that equality in companies is a right (and equally positive for productivity) and a commitment to social dialogue for its proper development. For menstrual health to enter companies, the state must promote these devices and the business sector must internalize the need to protect it.
The proposal for regulations such as the Spanish one is, per se, a huge step forward in legal, symbolic and cultural terms, which makes it possible to make visible and verbalize a reality and a historically obfuscated need. With it, a path is opened that can be an example for Latin America, following the steps forward in the decriminalization of abortion and the processes for the recognition of equality and the prohibition of discrimination in labor relations. Of course, 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 men’s time) and this makes it difficult for women to hire and perpetuates inequalities.
Furthermore, it is well known that, in Latin America, people who work without legal guarantees linked to the employment contract (the so-called informal work) represent more than half of the workforce, which makes it difficult to apply measures such as the one mentioned. Furthermore, it is equally evident that the stigma and taboo surrounding menstruation remains, which in popular parlance is still identified as a disease.
Fortunately, the power of the feminist movement in the region is allowing the normative advances that make us move towards a more just society, where no one has to go to work suffering from crippling pain and where menstruation is part of everyday life, free from stereotypes, stigma and discrimination.
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