?When Spain passed a bill guaranteeing paid menstrual leave for women, headlines framed the impending change as straightforward. How the bill, which will begin to be enforced on June 1, is implemented remains to be seen.
The bill creates a new sick leave that protects women experiencing incapacitating menstruation caused by a previously diagnosed pathology.
“The devil is always in the details,” said Emma O’Connor, legal director at Boyes Turner LLP in Reading, England. “It’s not something that an employee is going to be able to self-certify. They’re going to have to have a doctor’s note to confirm their symptoms.”
How Will This Bill Work?
There is not a lot of guidance in the bill for medical professionals.
“This legal definition has led some doctors and specialists to say that they don’t know how they’re going to apply this special leave because, in principle, it will be requested that a previous pathology has been detected and that as a consequence of that pathology, it results in a painful menstruation,” said Pedro Molina Lerida, legal director at DLA Piper in Madrid.
Employers have some time to figure out the best way to navigate the changes. Leave may be prescribed annually for workers who have a history of recurring menstrual pain, which will make it easier for employees who might otherwise be required to get a new doctor’s note every month.
Social Security Payments
Menstrual leave will be a special sick leave that is paid out of social security.
“This is special because the employee will receive the economic benefits from the first day of leave. There is no waiting period legally requested,” Lerida said.
Women who have not previously paid into social security for the preceding six months won’t be eligible for this sick leave.
The statutory sick pay for menstrual leave is not equal to a woman’s normal salary. Instead, it will be provided at 75 percent of covered earnings from the first day of leave.
“How attractive is that for a woman to have her salary reduced a week every month to the statutory minimum?” O’Connor asked. “And does that fuel things like the gender pay gap or gender stereotypes? Is that an unintended consequence?”
Other Implementation Concerns
If an employer has several women covered by the legislation, Lerida asked, how will it handle its workload? “Employers will have to be prepared in order to be flexible,” Lerida said.
Employers are going to need to put in place some training for HR and review their reporting and recording provisions for sickness absences, O’Connor said.
“How quickly can organizations work to make sure that the employee is getting, firstly, the support they need because they’re off sick, but also to ensure that they’re getting the correct payments in place, that their sick note is being processed quickly, that their sick pay is also being processed quickly?” O’Connor asked.
It’s also important for employers to make sure that the processes in place are in line with local health privacy laws and the General Data Protection Regulation (GDPR). Companies should have policies in place to determine who is privy to certain private health information of employees.
“Any information relating to their health would be sensitive personal data under the GDPR,” O’Connor said.
Katie Nadworny is a freelance writer in Istanbul.
