For the first time, Spanish legislation expressly covers menstrual health—providing protection for a special temporary incapacity due to medical conditions arising from disabling periods (secondary disabling menstruation).
Paid leave covers a vast and diverse range of protections, which vary by country and by region within the same country. One common ground for paid time off in different jurisdictions is employee sick leave; however, what is considered sick leave and the requirements to take sick leave days vary substantially.
The Council of Ministers in Spain has recently approved a proposal to amend the Bill on Sexual and Reproductive Health and the Voluntary Interruption of Pregnancy. 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 regulation and its potential implications, which we summarize below.
Sick leave system in Spain in a nutshell
The system in Spain provides that in case of sickness employees are entitled to take sick leave time and receive statutory sick pay, which is partially funded by the Social Security system and by the employer.
In very simple terms, a doctor will set the number of days that the employee needs to be on sick leave, setting a process to review and to extend, or to end the sick leave duration as necessary.
It will be the employer's responsibility to provide sick pay from the 4th to the 15th day of absence (both dates inclusive), and the Social Security system’s responsibility from the 16th day of absence and thereafter. The first three days of sick leave due to common contingencies are unpaid.
The amount of sick pay will be 60% of the employee’s base of contribution to Social Security up to the 20th day of illness and 75% of the base of contribution from the 21st day. However, collective agreements may also set up additional payment obligations for the employer, for example, the obligation to top up the employee’s base salary for all or part of the sick leave.
Menstrual leave proposed regulation
Under the new proposed regulation, menstrual health is included as a health standard. As a result, the proposed law includes the right to temporary incapacity for medical conditions arising from disabling periods (secondary disabling menstruation). This would cover, for example, related diseases, such as endometriosis or polycystic ovaries, which would prevent women from working normally.
This incapacity would operate subject to a medical report, and will allow a woman to stay at 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 the sick pay will be paid from the first day by the Social Security system, and does not require a minimum contribution period. The duration would be the days that each woman needs, according to her medical report.
This is the major difference to the temporary incapacity derived from common contingencies, which will not cover the first three days of absence (unless otherwise agreed) and require a minimum contribution period to the Social Security to have access to the sick pay cover.
The proposed regulations as currently drafted would create a new sick leave cover paid in full by the Social Security system since its start, i.e., at no initial cost for the employer (except if so provided under other sources or agreements), and exempt from the minimum contribution periods.
However, other type of common sicknesses that trigger short term absences would still be subject to the general system described above, which does require a minimum contribution period, and employees will not receive cover in the first three days.
Companies will need to adjust their policies and payroll practices to cover this new sick leave regulation, if and when it is approved. This may also be a precedent for other countries that have raised in the past the need to rule and protect this situation.
Employers in Spain and internationally stay tuned!
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Ana is part of Seyfarth’s leading International Employment Law practice. To find out more about the proposed menstrual leave regulation in Spain, please reach out to her or anyone else on our specialist team.