Should The US Follow Spain's Paid 'Menstrual Leave'? For Many, The Answer Is Complicated - Exclusive

As the United States faces an ongoing reproductive healthcare crisis following the Supreme Court overturning Roe v. Wade in 2022, elsewhere in the world, reproductive rights are being expanded. When Spain adopted expansive reproductive health reforms in February 2023, it also created paid menstrual leave for eligible workers, the first country in the world to do so (via NPR). According to the Washington Post, Spain's law posits that workers who provide a doctor's note to confirm they're experiencing severe, debilitating pain from menstruation can take up to five days of paid menstrual leave per month, plus a maximum of 365 days of sick leave already required by law per The European Commission. One founder of Occupy Democrats, Omar Rivero, celebrated the one-of-a-kind measure, and tweeted a prompt: Should the US adopt paid menstrual leave, too?

The short answer is it's complicated. While the Spanish law is meant to undercut stigma about women in the workplace, a robust debate about the policy brings up valid concerns: Could the law backfire and, for example, disincentivize employers from hiring women, knowing they could receive additional days off? To get a better idea of what menstrual leave could look like in the US, Women News dug into arguments for and against the policy, and spoke exclusively to Los Angeles-based employment lawyer, Ron Zambrano, the Employment Litigation Chair at West Coast Trial Lawyers for more clarity on how it could affect people.

Although every person experiences menstruation differently, for many, dealing with its side effects can be debilitating. One 2019 study estimated that on average, US women end up taking off an average of 5.8 days worth of work per year due to period-related symptoms like pain and migraines. This is even more dire for those with menstrual conditions such as endometriosis, which causes severe disabling symptoms that can interfere with everyday life. Endometriosis is not currently considered a disability. But what options do those with such conditions have when faced with pain outside the standard terms of employee benefits? For many, it means cutting into limited sick time, and or setting for lost wages by using unpaid leave. And even so, sick leave may not be adequate enough, as there is no current requirement at the federal level for businesses to offer paid sick leave. Consequently, many people who menstruate are left to bite their tongue and suffer through the pain out of guilt, or quietly take time off out of shame. 

Providing paid leave for workers who suffer through their periods could help them feel safer, more respected, and human. Jessica L. Barnack-Tavlaris, psychology professor at the College of New Jersey told the Washington Post, "Menstruation itself is not a disorder. But there are disorders related to the menstrual cycle. For those who have excessive bleeding or extreme pain, work flexibility is certainly going to help alleviate that distress and help them achieve well-being."

Although paid menstrual leave appears to clearly be a step in the right direction for supporting workers, many businesses remain hesitant about it. Employee feedback program AllVoices claims mandated period leave opens the door for several potential issues that could dissuade employers from adopting it, such as employees being dishonest about their periods to take time away from work. However, the program suggests one way to avoid this is by having clear guidelines defining when the leave can be used, similar to how Spain's law clarifies it is to be used for pain management. To keep things fair, AllVoices further advises that those policies should also "not create a hierarchy of health conditions or perpetuate gender stereotypes," when other employees may need accommodations for another specific health condition.

Although there is currently no mandate in place, some US employers have already implemented paid period leave on their own. Chani, an astrology app, offers its workers "unlimited menstrual leave for people with uteruses," that is separate from vacation or sick time. Per the Washington Post, the company reports that more than half of its qualifying workers have already embraced the policy by using it. 

Although one of the hopes of paid leave is to normalize menstruation like any other health condition, some critics argue the policy promotes sexist ideas about women by suggesting that they are incapable of working while on their periods. These concerns are not completely unfounded. Given that many US women have reported being conveniently passed for promotions while pregnant, it's fair some worry another policy based on one qualifying biological factor (the ability to menstruate) could open up room for similar discrimination if they were to take too many days off. However, legal experts say there are currently protections in place that would prevent employers from engaging in these practices. Los Angeles-based employment lawyer, Ron Zambrano, the Employment Litigation Chair at West Coast Trial Lawyers, tells Women News, "If a female employee is discriminated or retaliated against because of her issues stemming from a menstrual cycle, I would argue such discrimination is based on her gender under Title VII" or the appropriate state laws.

To further complicate the matter is how businesses would determine eligibility. For nonbinary people and trans men, navigating paid menstrual leave could be particularly challenging, especially if they aren't out. More than three quarters of trans people already experience discrimination in the workplace, per the National Center for Transgender Equality. However, some businesses that have already adopted the policy, such as the aforementioned Chani, have taken steps to ensure inclusivity by not writing language like "women" directly into their leave requirements. 

During the immediate aftermath of the overturning of Roe v. Wade, women en masse deleted their period tracking apps after legal experts warned the government could potentially use their data against them. The Health Insurance Portability and Accountability Act, or HIPAA, also does not protect the health data of those who use such apps. Given these changes, a growing concern about privacy exists surrounding implementing paid menstrual leave. Critics have voiced concerns that enacting the specifically designated 'menstrual leave' policy would potentially require employees to disclose sensitive information about their health with their employer. Responding to Omaro Rivero's tweet, one Twitter user wrote, "It's nobody's business when a woman is menstruating." Along with stigma, the worry here is that it could open the door for potential discrimination or retaliation, like skipping an employee who uses too many 'menstrual leave days' for a promotion.

However, Zambrano tells Women News that to the contrary, employers would not be legally able to or legally forced to disclose when an employee takes menstrual leave. "The employer still must respect the confidentiality of any medical issues occurring to any of their employees."

Some potential alternatives to period leave that could help menstruating workers could include classifying debilitating conditions related to menstruation as disabilities, and expanding the amount of paid sick leave offered in general, rather than designating menstrual leave as its own category. Zambrano tells Women News, "From a policy perspective, legislating for this type of leave should mirror how pregnancy was lifted to a protective class, and just requiring some sort of doctor's note that is kept confidential."

In 2017, The Pew Research Center presented data indicating many Americans support greater paid leave on a wider scale. Increasing access to paid sick leave could make it easier for those who have complications with their periods without forcing them to brand their time away as 'menstrual leave'.  It would also minimize critics who claim paid menstrual leave is unfair against those who do not menstruate, such as cisgender men and older women past menstruating age.

While the method continues to be explored, managing care for menstruating workers could become an increasing priority. Ameer Abdul, the national campaign manager of Period, an organization for global menstrual equity, tells Changing America that implementing more flexibility regarding an employee's health needs and providing necessary accommodations is imperative for creating better inclusion at work. Some other measures companies can take to support menstruating workers include providing complimentary access to menstrual hygiene products, which would help with costs while also reducing general stigma.