Whether you agree with it or not, the concept of “Menstrual Cycle” leave for female employees is a growing trend internationally. It begs the question, is this something employers, or even our legislators, should be looking to implement in the workplace?
Approximately 80% of women have suffered discomfort at some point during their menstrual cycle, while approximately 5-10% of women regularly suffer pain and discomfort which is significant enough to disrupt their daily lives. With this in mind, it is worth evaluating whether women should be entitled to additional leave for this purpose.
INTERNATIONALLY
Menstrual cycle leave may be a novel concept in South Africa, but it does already exist in several countries around the world. Examples of these are Japan, South Korea, and Taiwan. In these jurisdictions, menstrual leave is a legislated entitlement.
While this may appear progressive on the face of it, if you dig deeper, the legislation in these jurisdictions seems to have been born out of sheer necessity due to a lack of alternative employee rights. In these countries, where employees do not enjoy the same extent of sick leave, annual leave and family responsibility leave, the need for menstrual cycle leave was a necessity to protect women within the workplace. Therefore, the legislation stemmed more from the fact that women had no other option available to them.
In countries like Italy, where legislation has been proposed, but not implemented, there was significant debate as to whether this form of leave should be introduced. On the one hand, there were individuals strongly in favour of the flexibility and freedom it would provide women who suffer during their menstrual cycles. The argument on the other end of the spectrum was that such a policy would further entrench the patriarchal stigma that women are the weaker sex within the workplace. Even further to this, there was an expressed fear that the policy would result in subsequent discrimination against women, as managers would not want to hire or promote women if they are associated with lower productivity and higher absenteeism. As a result of this debate, the legislation has not been passed to date.
A further interesting statistic is that in countries where large corporates have implemented their own internal policies for menstrual leave, such as within the United Kingdom, the initial uptake by women to use the leave was relatively high. However, within just a few years, the uptake had significantly reduced. The reason behind this is mostly speculation as studies have not been done. However, the supposed cause was linked to the stigma it created for women who were more frequently absent from the workplace.
LAWFULNESS IN SOUTH AFRICA
Putting aside the debate as to whether such leave should be implemented, there is also the objective question of lawfulness within South African Labour Law.
South African Labour Law, via the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, and the Employment Equity Act 55 of 1998 (“EEA”), seek to protect individuals from acts of both direct and indirect discrimination. Specifically, within a workplace context, we have regard to the EEA.
Despite what some people may believe, discrimination itself is not unlawful, but rather unfair discrimination is unlawful within South Africa.
Sections 6 and 11 of the EEA provide that where an employee alleges discrimination to have taken place on a ground which is specifically named, then it is presumed that the discrimination is unfair. Gender, Sex, and Age are three specifically named grounds. Because menstrual cycle leave would apply to females of a certain age, this form of leave will necessarily create a difference in treatment on these grounds. Following this, because of the presuming provision in the EEA, this leave will be presumed to be a form of unfair discrimination. It would fall to the employer or the legislator to prove that the discrimination the granting of this leave causes is, in fact, not unfair.
This may seem like it is insurmountable, but fair discrimination occurs more often than we may realise in our law. Maternity leave would be one easy example of fair discrimination. This is a leave benefit which is solely available to women who give birth to a child – but we will all quickly agree that this form of leave is crucial and fair for women in the workplace. As a result, under the correct circumstances, menstrual cycle leave may be a form of fair discrimination.
The problem that the countries and corporates appear to be trying to solve by introducing menstrual cycle leave is to assist women when their menstrual cycle, essentially, incapacitates them from completing their duties. Perhaps the next step in becoming innovative (without the uproar of introducing new leave for a select group) is simply normalising the taking of sick leave when a woman is incapacitated due to her menstrual leave cycle.
Given that South African Labour Law has a reasonable sick leave entitlement available to all employees, it may be more difficult to argue that additional leave constitutes fair discrimination. In the case of maternity leave, there would be no other form of leave which is sufficient to serve the same purpose. Sick leave, however, could potentially be sufficient for the purposes of incapacity caused by a woman’s menstrual cycle.
We could jump to conclusions regarding whether every woman would have sufficient sick leave available to them, but the reality is that they currently do have sufficient sick leave without under-performing once a month. It does not appear that normalising the taking of sick leave for this purpose is going to open the floodgates.
As a result of the above, and the reasonableness of the existing leave entitlements, the EEA may require that we explore the use of sick leave before we can successfully argue that sufficient leave is not currently available to female employees.
HOW CAN WE HELP?
Whether you are looking to introduce a new and novel form of leave to your workplace, or if you are trying to understand where a particular employee need can fit within the existing leave entitlements, we are able to advise and assist. Please contact us if you require any advice on any leave entitlements. We are also able to prepare drafts of comprehensive leave policies for your use.