Thinking | 4 March 2021

Menstrual and menopausal leave: from flexible work to best practice in gender equality and wellbeing in the workplace

By Fay Calderone

In one of her final acts as CEO of Australian retail superannuation fund Future Super earlier this year, Kirstin Hunter proudly announced her support for the company’s introduction of six days’ paid menstrual and menopausal leave per year.

The decision has renewed debate around paid menstrual and menopausal leave in Australia.

The policy implemented by Future Super was based on a template developed by the Victorian Women’s Trust in 2017 which provides for 12 days’ paid menstrual and menopausal leave per year (pro rata, non-cumulative) where an employee is unable to perform work duties because of menstruation and menopause and their associated symptoms (including heavy bleeding, abdominal cramps, back pain, fatigue, headache, nausea and cold sweats).

The purpose of the policy is to ‘support employees in their ability to adequately self-care during their period and menopause, while not being penalised by having to deplete their sick leave’. The policy does not require an employee to provide a medical certificate and, in addition to paid leave, allows an employee to work from home or somewhere in the workplace that makes the employee more comfortable such as resting in a quiet area.

The surprising history of menstrual leave

Menstrual leave was first introduced in the 1920s for female factory workers in the Soviet Union. The policy lasted only five years after lobbying from female workers who found employers were hiring ‘cheaper’ and ‘more reliable’ male workers instead.

Japan enacted legislation in 1947 requiring employers to grant six days’ unpaid leave per year where a worker requests it because work during her menstrual cycle ‘would be especially difficult’.

Indonesia followed suit in 1948, legislating for female workers to receive two days’ paid leave for the first and second day of their menstrual cycle, up to a maximum of 24 days per year.

Zambia has informally offered women paid leave since the 1990s and formally since 2015. The legal definition is not precise – women can take the day when they want and do not have to provide any medical justification. An employer who denies female employees this entitlement can be prosecuted.

The modern adoption of menstrual and menopausal leave

Future Super and the Victorian Women’s Trust join employers in the UK (not-for-profit Coexist) and India (food delivery startup Zomato, digital media company Culture Machine and marketing agency Gozoop) in introducing menstrual and menopausal leave.

Proponents for paid menstrual and menopausal leave claim that it sends a strong message that menstruation and menopause are normal and improves productivity by tackling the issue of presenteeism. A 2019 study of 32,748 Dutch women found that 81% turned up to work even when they felt unwell at an estimated productivity loss of nine days per year, while another 68% wished they had the option of more flexible work or study hours during their period.

Opponents of paid menstrual and menopausal leave assert that it will harm the cause of equality in the workplace by singling women out as being different, highlighting another reason to discriminate against women and creating a disincentive for employers to hire women by imposing an additional cost. Similar arguments were advanced in opposition to the introduction of maternity leave. There are also concerns around women taking advantage of paid menstrual and menopausal leave.

The practicalities of taking menstrual and menopausal leave

Where an employee takes paid personal/carer’s leave, they must provide ‘evidence to satisfy a reasonable person’ under subsection 107(3) of the Fair Work Act 2009 (Cth). This typically means a statutory declaration or medical certificate.

It is arguable that menstrual and menopausal leave should be treated differently given that it is somewhat predictable and treatment usually does not require the intervention of a medical professional.

In countries where menstrual leave is commonplace, employers and workers have a ‘trust system’ where the worker notifies their employer when they are suffering symptoms which will affect their ability to perform their work.

The next step for best practice employers?

Interestingly, in the first three years of the Victorian Woman’s Trust introducing its policy, only eight days’ leave had in fact been taken in a workplace with 13 female workers.

In a post-COVID world, many of the flexibilities envisaged in the menstrual and menopausal leave policies implemented to date are now second nature for the workforce. Employers may find that workers simply want to work from home rather than take days off.

A formal policy may however encourage workers to break down the stigma around menstruation and menopause and help them feel more supported and valued by their employer. The current global precedents indicate that at potentially little cost to the organisation, employers may boast being at the forefront of best practice in gender equality and wellbeing in the workplace.

This article was written with the assistance of Remi Kelly, Lawyer.

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Fay Calderone

Fay has acted for employers for the last 20 years across a range of industries including professional services, recruitment,...

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