We know only a couple of companies that have introduced menstrual leave for their female employees. It is worth making menstrual leave the rule rather than the exception?
Elżbieta Niezgódka, a lawyer from the Woman Labour Matters law firm said: ‘We must first of all think of any potential alternatives. The current legislation says absolutely nothing about this. I daresay there is some “leeway”, but there is no solution dedicated specifically to menstrual leave. Women who suffer during their period can simply take a sick leave.’
Exactly. The issue of menstruation at work is still a taboo, and it turns out to be controversial when discussed. Many employers consider sick leave as an appropriate solution, and believe any other would discriminate against men.
That is true. Some men think it would be discriminatory if they were not provided with additional leave. We should remember, however, that this is exactly the same as a sick leave for pregnancy, for which the employee receives full pay . Since men do not get pregnant, they are simply not provided with such an opportunity. In terms of legislation, there is no discrimination when people are in different situations. Discrimination occurs only when people in the same factual situation are treated unfairly. Since men do not menstruate, no discrimination would be involved.
However, most employers are still of the opinion that if a woman has a painful period, she should go to the doctor and get a sick leave, or ‘L4’ in Poland. At first glance, the solution seems fair. A specialist prescribes a sick leave, and the employer can rest assured that no rights were abused.
So why is sick leave not the best legal instrument for menstruation?
First of all, there can be many such sick leaves if a female employee is struggling with painful periods. Compared to her colleagues, she is at a disadvantage when the sick leave allowance for other conditions is reduced. Then, a sick leave in Poland is paid only at 80 percent of one’s salary. Practical aspects are important, too. A woman gets up in the morning with menstrual pain and has to go to a doctor to get sick leave urgently and only for today. It would be hard to imagine in today’s public healthcare system. Even if you have a private healthcare insurance, it can take half a day to see a doctor and get a sick leave. We should also consider how a doctor can diagnose menstrual pain. It is difficult to verify this in practice.
So what do you think would be the best solution?
In my opinion, we need a compromise to reconcile medical issues and employer interests and eliminate room for abuse. I think it is a good solution for a woman who is treated for painful menstruation by a gynaecologist to get a certificate that confirms her condition is chronic. And if you get such a certificate, you can actually use menstrual leave. If a woman feels unwell during menstruation, she can email her employer that she is taking menstrual leave today.
Do you think the solution should be reflected in law, for example in the Labour Code?
It would be highly advisable to implement such regulations. Currently, employers argue that companies can introduce menstrual leave in their internal regulations, but I think it should be regulated by law. The Labour Code is a good place to do this, as it includes regulations on holiday leave and sick leave.
How do you convince employers who think this would be twenty days more of leave for a woman? This could put women competing with men for the same jobs at a disadvantage.
I believe we need to emphasise that the problem does not disappear just because it is not regulated by the law. If a woman suffers during her menstruation and is unable to do anything, she will not be able to work anyway. She will simply spend all her day at the computer, looking at her watch and wondering when the working day will end. In such a situation, female employees often opt for leave on demand. The easiest way is to use a solution that does not require calling your boss in the morning and making a doctor’s appointment. The employer may argue that there are only four days of leave on demand per year while the menstrual leave could take up even twenty days during a year. However, we should remember we are entitled to 182 days of sick leave per year under the same rules, and very few people use such an amount of sick leave. People who want to abuse sick leave do so anyway, and those who want to work opt for sick leave as a last resort. The same would be true for menstrual leave.
Have Polish courts spoken out in their decisions on women’s labour rights in the context of menstruation?
I am not aware of such a decision that has done so. It is a huge taboo no one talks about. It seems to me that there are no court decisions also because women would be too ashamed to take the issue of menstruation and related labour rights to court. Women simply don’t menstruate – this is the general public’s perception of the issue. It would not be such a problem to take the matter to court and sue one’s employer but it would be a huge problem to simply talk about menstrual leave and menstruation in court.
The text was published at biznes.gazetaprawna.pl on 10 November 2022.