Spain update: Is paid menstrual leave coming? – Employee rights / labor relations

For the first time, Spanish law expressly covers menstrual health, providing protection for special temporary incapacity due to medical conditions resulting from disabling periods (secondary disabling menstruation).

Paid leave covers a wide and diverse range of protections, which vary by country and region within a country. A common reason for paid leave in different jurisdictions is employee sick leave; however, what is considered sick leave and the requirements for taking sick days vary widely.

The Spanish Council of Ministers recently approved a proposal to amend the Sexual and Reproductive Health and Voluntary Termination of Pregnancy Bill. The approved text will now be sent to Congress to begin its parliamentary processing.

Employers with operations in Spain should be aware of the proposed settlement and its potential implications, which we summarize below.

The sick leave system in Spain in brief

The system in Spain provides that in the event of illness, employees have the right to take sick leave and receive statutory sick pay, which is partly funded by the social security system and by the employer.

In very simple terms, a doctor will set the number of days the employee must be on sick leave, establishing a process to review and extend, or end the duration of sick leave if necessary.

It will be the responsibility of the employer to provide sick pay from the 4th to the 15th day of absence (both dates inclusive) and the responsibility of the social security system from the 16th day of absence and beyond . The first three days off work due to common contingencies are not paid.

The amount of sickness benefit will be 60% of the employee’s social security contribution base up to the 20th day of illness and 75% of the contribution base from the 21st day. However, collective agreements may also provide for additional payment obligations for the employer, for example the obligation to supplement the employee’s basic salary for all or part of the work stoppage.

Proposed Regulations on Menstrual Leave

Under the proposed new regulations, menstrual health is included as a standard of health. Accordingly, the proposed law includes the right to temporary incapacity for medical conditions resulting from disabling periods (secondary disabling menstruation). This would cover, for example, related diseases, such as endometriosis or polycystic ovaries, which prevent women from working normally.

This incapacity would operate subject to a medical report, and would allow a woman to stay home for a few hours of her working day, or for a few days if the pain of her period prevents her from working.

This would be a temporary incapacity where sickness benefit will be paid from day one by the social security system, and does not require a minimum contribution period. The duration would correspond to the days that each woman needs, according to her medical report.

This is the major difference with the temporary incapacity derived from common contingencies, which will not cover the first three days of absence (unless otherwise agreed) and will require a minimum period of Social Security contribution to have access to coverage for sickness benefits.

The draft regulation as currently drafted would create new work stoppage coverage fully covered by Social Security since its introduction, i.e. at no initial cost for the employer (except if provided for by other sources or agreements), and exempt from the minimum contribution period.

However, other types of common illnesses that trigger short-term absences would still be subject to the general scheme described above, which requires a minimum contribution period, and employees will not be covered for the first three days.

Companies will need to adjust their payroll policies and practices to cover this new sick leave regulation, if and when it is approved. It may also set a precedent for other countries that have raised in the past the need to regulate and protect this situation.

Employers in Spain and abroad, stay tuned!

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.