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We at Sultan Lawyers hope to analyze various workplace environments and dynamics, particularly those that include women in the workforce. Understandably, women may have different needs or requirements in terms of policies or accommodations in the workplace, specifically when it relates to challenges based on their biology and hormones. 

According to World Bank and recent data derived from International Labour Organization, ILOSTAT database, in 2021, in Canada, women made up 47.2% of the workforce in Canada, with 76% of all females aged 15-64 employed. With nearly half the workforce being powered by females, these findings prompt us to question, “Are menstruation policies in the workplace necessary?”. This topic is not taboo; it is natural, normal and common in women, girls, and transgender men and nonbinary persons who menstruate.

In this article, we break down some key factors when considering whether a menstruation policy should be required in a workplace setting and, if so, how this policy may be implemented. 

Laying a foundation 

The menstrual cycle is an occurrence experienced by females of varying ages and is a completely ordinary process that occurs with women beginning at puberty and ceasing at menopause. According to the Society of Obstetricians and Gynaecologists of Canada, it consists of four phases: follicular, ovulatory, luteal/premenstrual, and menstrual.

To lay a foundation, males and females have different biological functioning processes, specifically in relation to their hormonal cycles (The Society of Obstetricians and Gynecologists of Canada, 2022). Gabrielle Lichterman, hormone health specialist, journalist, and educator provides insight, as set out below, to the discrepancies of the male and female hormonal cycles and how they have the potential to impact female’s moods, emotions, physical state, sleep quality, appetite, etc.

Females’ menstrual cycle, as mentioned, is about four weeks in duration with three key hormones fluctuating within the four phases: estrogen, testosterone and progesterone, increasing and decreasing in a specific pattern. Men have biological, hormonal cycles that occur similarly each and every day on a 24-hour cycle. While men produce estrogen and progesterone because of their increased testosterone levels compared to women (approximately 10x higher), their hormonal cycle typically revolves around the surplus and deficit of testosterone on a daily cycle.

Female workers have different workplace experiences 

Due to the substantial hormonal shifts that occur during menstruation, it may force females in the workplace to experience increased challenges in their daily life that male co-workers may not endure. The menstrual cycle is a biological process experienced by most females, and is not a choice. This can include, but is not limited to, a pattern of monthly physiological and hormonal changes that can greatly impact work productivity, motivation, work-life balance, work satisfaction and much more. 

Here, the focus is on the experiences based on the effects of menstruation, specially how it relates to employment and exploring how policies accommodating female experiences could be implemented. 

What are the common effects of menstruation?

Premenstrual syndrome (O/K. as PMS), are described as symptoms that commence approximately one to two weeks prior to menstruation, and  these symptoms can either last or change through menstruation. While it is recognised that the menstrual cycle can have positive effects, most females throughout their experiences will endure intense symptoms that can last as long as 9 days . 

Not only can these negative effects of the female menstrual cycle impact performance and efficiency in the workplace, but it can alter an employee’s work habit and or work preferences. 

For example, if an employee prefers to work from home during a period of their menstrual cycle, so long as the request or accommodation does not pose hardship on the employer, an employer may consider honouring this need. 

Other forms of accommodations depending on a person’s individual needs, may include: 

  • allowing a flexible work schedule
  • modifying job duties
  • modifying policies
  • making changes to the building (for example, installing ramps, hand rails, automatic door openers, wider doorways, etc.)
  • modifying workstations (making ergonomic changes, supplying a specialized chair, back support, etc.)
  • providing specialized adaptation or assistive devices for computers, accessible technology
  • providing alternative ways of communicating with the employee
  • additional training
  • allowing short-term and long-term disability leave
  • job bundling and unbundling
  • alternative work (where a person with a disability cannot perform their pre-disability job, even with accommodation).

While symptoms can certainly differ, some of the most known premenstrual syndrome symptoms experienced in the weeks before or during menstruation can include, but are not limited to:

Psychological symptoms:

  • mood swings;
  • nervousness; 
  • social withdrawal;
  • forgetfulness;
  • depression;
  • anxiety;
  • irritability;
  • crying spells;
  • lethargic/fatigued;
  • insomnia;
  • difficulty concentrating; 
  • feeling severely overwhelmed; 
  • emotional sensitivity; and
  • feelings of anger.

Neurologic and vascular symptoms:

  • muscle spasms;
  • decreased coordination;
  • headaches;
  • heart palpitations; and 
  • fainting.

Physical symptoms:

  • food sensitivity/appetite changes; 
  • excessive bloating;
  • muscle ache, joint pain;
  • skin reactions (dry skin, acne, hives, swelling, rashes);
  • weight gain, or fluid retention;
  • body cramping; and
  • tender body parts.

When symptoms of PMS are severe to effect one’s daily life, they are then referred to as symptoms of premenstrual dysphoric disorder (PMDD). All symptoms have potential to lead to physical discomfort and imbalanced emotions. 

Is or can menstruation be considered a disability?

The Ontario Human Rights Commission states that the term “disability” is to be interpreted broadly and includes past, present and perceived conditions. Further, individuals with a disability can experience times of wellness and still face societal barriers in many different forms. 

While period pain has not been specifically identified as a disability in law, the effects of menstruation, if they prove to be so severe, can potentially be considered disabling to an individual either physically or mentally in certain cases.

Confirmation as to whether mensuration is considered a disability has not yet been found in case law. However, if or when a decision comes, it is assumed that it will be heavily fact-dependent and the presence of severity and frequency of the symptoms will be critical.

Even if period pain does not amount to a disability for all women, it is nevertheless advisable that employers take period pain seriously and support and assist their employees.

How is menstruation related to human rights?

In Canada, human rights are defined as:

“[T]he rights to which persons are inherently entitled to because they are human beings. Human rights describe how we instinctively expect to be treated as persons. They define what we are all entitled to – a life of equality, dignity and respect, to live free from discrimination and harassment.”

While there are currently 17 human rights ground which are protected under Ontario Law, there are few that could be particularly linked to the effects of female menstruation in a work place setting. These include:

  • Sex

The Ontario Human Rights Commission (OHRC) considers sex to be related to a person’s biological sex, male or female. Men and women receive equal protection under this ground. The ground of “sex” also includes a broader notion of “gender,” which can be described as the social characteristics attributed to each sex. The Code protects men and women from harassment and discrimination, including assumptions about their abilities that result from stereotypes about how men and women ”should” behave, dress or act. 

Example:

Menstruation-related teasing, making assumptions, exclusion and or shame raise potential of violating the principle of human dignity.

There is a whirlwind of ideologies surrounding menstruation, and some of which have stigmatized the topic. In some countries, menstruation can be viewed as a very negative occurrence associated with unfortunate beliefs which tend to leave women without basic fundamentals to live a life with dignity and respect. 

This pertains to women and girls, as well as for transgender men and nonbinary persons who menstruate.

  • Disability (in severe cases whereby effects of menstruation could be found debilitating)

The Code protects people from discrimination and harassment because of past, present and perceived disabilities.  “Disability” covers a broad range and degree of conditions, some visible and some not visible. A disability may have been present from birth, caused by an accident, or developed over time.

Example:

Irregular or extreme menstrual symptoms can signify serious disorders. Extremely heavy periods can increase the risk of iron-deficiency anaemia, which can cause extreme fatigue, weakness, dizziness and other symptoms. 

Further, if symptoms (such as those mentioned above) become severe and unbearable, if you find it debilitating there is potential to proceed seeking an accommodation. However, as mentioned we presume this would be a case-by-case basis, and the responsibility would be on the employee to provide proof thereof.

  • Age

Age is a protected ground under the Code, this means that you cannot be discriminated against because of your age where you work or live, or go to get a service. While females can menstruate at a wide range of ages, age discrimination could be present.

Example:

You are unjustifiably treated differently because of your age in relation to your menstrual cycle (ie. seen as too young, or too old, to be accommodated in relation to your period).

Do I need a Policy? 

A policy can be utilized to provide guidance as related to rights and entitlements of staff affected by menstrual symptoms and further accommodations available to support them.

As an employer, first observe who you employ and what their needs may be. If you want to include your employees in the process a simple survey or email would suffice and a beneficial strategy to gather information as to whether a menstruation policy would be appreciated or advantageous for employees in your work environment. Commencing a conversation can assist employers in excelling their workplace environment, allowing employees to work more comfortably, and efficiently. While doing so, employers should keep in mind types of questions asked in the process, and to avoid questions that could be considered discrimination or harassment.

Further, as menstruation is considered a natural biological process, the effects of menstruation as discussed raise potential for females to experience rippling health concerns. While the employer is permitted to know if the employee is “fit to work”, they are not generally entitled to know any physical or psychiatric diagnosis, treatment plan, and or medication, if applicable.

How do I Implement a Menstruation Policy?

Below we have provided five tips for employers who are preparing to implement a workplace policy.

  1. Utilize inclusive language 

Although the policy would target specifically those who menstruate, ensure the language used promotes inclusion, acceptance and equality.

  1. Introduce the policy

This section would explain the purpose and over goal of the policy. A menstruation policy would likely set out rights of staff affected by menstrual symptoms and provide guidance as per support available to them, creating an accessible and supportive workplace environment by giving employees everything needed to manage symptoms, and maintain efficiency. 

  1. Clarify the Scope of the Policy

The scope refers to who the policy applies to. Generally, menstruation is experienced by those with female reproductive systems ranging in age. To maintain inclusivity, the policy may apply to anyone working within the company including; employees, workers, contractors, volunteers, interns and apprentices.

  1. Implement Training 

Ensure managers and supervisors are expertly aware of the policy and accommodations associated with providing employees with menstrual support. 

  1. Requesting support

Ensure the message is clear that the onus is on the employee to verbalize whether they are having trouble coping or performing at work due to varying, or consistent menstrual effects. Provide detailed guidance as to who the employees can refer to when support is needed. Ensure privacy is maintained, and any health-related information disclosed during discussions are kept in confidence.

  1. Offer workplace flexibility 

For employees who require a temporary or permanent change to their working environment it would be beneficial to offer a have a policy on requesting flexible working arrangements. For example, this could

include offering a quiet/safe space for employees to work or to take medication, working from home, modifying working hours, altering workloads or taking more frequent breaks. 

Additional Considerations for Employers 

If an employment policy is simply not in the horizon as an employer, there are alternative actions employers can take to show they are supportive, accommodating and acknowledge female experiences. 

Some alternatives to implementing a workplace policy could look like:

  • Providing employee benefits to ensure staff can have access to various forms of treatments as necessary;
  • Providing sanitary/disposable menstrual products in employee washroom facilities to ensure they are readily available; and
  • Being accommodating/compassionate if an employee is experiencing severe menstrual symptoms that inherently affects their work.

CONTACT US

Sultan Lawyers provides comprehensive workplace policy support to employers. This includes a full review of specific matters in the workplace and a review of all related policies and procedures. For further information and assistance, please contact the Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to khayward@sultanlawyers.com.


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