Should law firms introduce menstrual leave?

When Future Super, a superannuation fund with over 40,000 members and over $1.5 billion in funds under management, examined its quarterly engagement survey by gender for the first time in 2020, it highlighted a curious divide. Engagement levels for men were 86 per cent, whereas women languished at just 38 per cent.

In response to the results, the organisation conducted a focus group with female staff members to understand what could be done to boost women’s engagement. A menstrual and menopausal leave policy was suggested, which Chief People Officer Leigh Dunlop says management saw as “a piece of low-hanging fruit that we could implement quite quickly because we believed it was important”.

The result is a menstrual and menopausal policy with two key pillars: provision to work flexibly to manage symptoms, such as working from home or taking longer breaks, and access to six days of paid leave per year. After the policy was implemented, women’s engagement rose to a whopping 71 per cent.

“We really closed that gap in terms of engagement between the two,” Dunlop says.

She says the policy is also helping to remove stigma around menstruation and menopause. A male employee designed a period emoji, which signals to colleagues on Slack that a staff member is on menstrual leave, Dunlop says. “People are being very open about when they’re taking it and it’s helping to encourage open conversations.”

Future Super is one of a small but growing number of Australian corporates to introduce menstrual and menopausal leave to help counter the workplace impact of periods and other symptoms among women and people who menstruate. The policy is open source – indeed, it was modelled on one developed by the Victorian Women’s Trust – and, Dunlop says, “100 per cent it could be applied to any workforce”, including law firms.

“What we’re ultimately trying to do is create equal participation in the workforce in what is an unequal world,” she says.

How periods impact work

More than nine in 10 young women report regular period pain, and there’s little evidence it gets better with age. In the workplace, there can be serious consequences.

A recent survey conducted by Maurice Blackburn found 75 per cent of women suffer from painful periods, and of those 73 per cent say they struggle to focus, or the pain affects their ability to work.

Menopausal symptoms can also have a similar impact. Research examining experiences of menopause at work by Circle In and the Victorian Women’s Trust found 83 per cent of women say their work is negatively affected and almost half consider retiring or taking a break from work.

Globally, menstrual leave is not new, but it’s offered in just a handful of countries. In 1922, the Soviet Union enacted protective labour laws to guard the menstrual health of female workers. Japan and Indonesia followed suit in the late 1940s. South Korea, Japan, Taiwan and Zambia also grant menstrual leave, and in February, Spain became the first European country to do so, legislating up to five days of paid leave per month.

However, in many of these countries, uptake is low for fear of resentment from colleagues, having to discuss taboo topics with managers and, in some cases, needing to produce a medical certificate.

“It is a man’s world, and workplaces and most of our institutions were established by men,” says Sarah Duffy, a senior lecturer in the School of Business at Western Sydney University who researches gender equity in institutional contexts.

“The infrastructure is designed around the ideal male breadwinner who has an unabridged commitment to work and can work all hours of the day, whereas the fact of the matter is, for some women and people who menstruate, it does impact on their ability to work.”

Charting productivity gains

Facilitating direct pathways to flexible working arrangements and paid leave helps women to be happier and more productive at work and find it easier to remain in employment, explains Jessica Heron.

Heron is a lawyer at Maurice Blackburn, which leads a group of Australian unions pushing to introduce protections in the Fair Work Act for paid menstrual and menopause leave.

At present, the firm offers flexible work arrangements and four additional days of health and wellbeing leave that women can use.

“Better productivity is definitely something that’s come out of the research,” Heron says. “A lot of women continue to work through their pain, so what having flexibility enables them to do is work when they’re at their best – not when they’re at their worst. That’s going to produce better outcomes and better deliverables from employees.”

Improvements to retention and culture – long an issue at many Australian law firms – are further benefits of menstrual and menopausal leave, Heron says.

“When you have a lot of law firms looking for good talent, they need to have a good offering. Culture, in particular, is on the radar of a lot of young lawyers and they don’t want to work somewhere that isn’t aligned with their values,” she says.

“For a firm to express that they are interested in attracting talent by offering menstrual and menopausal entitlements, whether that’s leave or flexible work, it’s speaking to a culture of progression.”

Duffy agrees that inclusive menstrual policies offer significant productivity benefits for law firms.

“Feeling like you belong, rather than are just being tolerated, makes a huge difference to how you feel towards the organisation, how hard you’re willing to work and what you will give back for what you’ve been given,” she says.

“Law firms would see dividends paid.”

Confronting stigma and taboo

Overcoming the stigma and taboo surrounding menstruation and menopause is key to successful development and implementation of any policy, as well as its uptake.

“The taboo says that what you experience as a woman with your cycling through menstruation and menopause, we don’t want to know about it. We don’t want to treat you in any special way, and we don’t even want to recognise that it might cause you discomfort – just get on with it,” explains Mary Crooks, executive director of the Victorian Women’s Trust.

She says the process of formulating and introducing the organisation’s own menstrual and menopause policy in 2017 – one of Australia’s first, which is freely available online – has transformed the culture of a workplace that’s very essence is defined by a commitment to gender equality.

“I’ve seen women and men being able to talk about it without embarrassment,” Crooks says. “I’ve seen the men in our office reframe their own take on what it means at work and back at home with the women in their families.

“I’ve been an advocate of gender equality for a long time, but up until this work I never saw menstruation and the menstrual taboo as part of the gender equality jigsaw. Now I do.”

The Victorian Women’s Trust policy provides for flexibility to work from home, the opportunity to stay in the workplace with modifications that encourage employee comfort, like resting in a quiet area, and 12 paid days of leave per calendar year.

Crucially, says Crooks, staff aren’t required to supply a medical certificate. “It shouldn’t be treated as a sickness, rather it is a natural phenomenon, and the best response is to be open and supportive.”

Duffy says trust is an important issue, in addition to facilitating a cultural shift so everyone in the organisation understands why a menstrual and menopausal policy is being implemented.

“It’s about having trust in women that they know their bodies and that they want to work. There also needs to be education so men can learn that it’s not okay, for example, to make jokes about having your period,” she says.

“For anyone supervising staff, it’s really important that they are convinced of the importance and the need for this, and that if you give your staff the right conditions to succeed, they will.”

Future Super also doesn’t ask for medical certificates, says Dunlop, explaining that the organisation’s approach is “policies can be equitable without providing benefits equally to every single person”.

“It can be hard when you’re in a position of privilege to see other groups getting something you’re not entitled to and feeling like you should be,” she says. “But it is about creating an equitable workplace, which means sometimes things apply to some people differently.

“We’re not trying to put people ahead of other people – we’re just trying to get people up to the same starting point.”

Fit for purpose

Heron at Maurice Blackburn says introducing protections in the Fair Work Act for paid menstrual and menopause leave – flexible work arrangements and at least 12 days per year, or one day per month – will cover the broadest pool of Australian workers.

“In the hands of some employers, it can be weaponised to fuel unnecessary conversations around men missing out, whereas if it’s something that is expressly provided for in the Fair Work Act, it removes that conversation completely because it just flows from national law,” she says.

“The employer has no say – they have to comply.”

In the interim, an effective approach for law firms, Heron says, is to develop a menstrual and menopausal policy that sets our provisions for flexible work arrangements, paid leave and any additional requirements.

Adapting the policy to the needs of individual firms is crucial, Dr Duffy says.

“It’s really important to hear from the staff themselves as to what they want and what they think will work best for them, and to have male staff reflect on how they can be allies to their co-workers,” she says.

Dunlop and Crooks agree the cost is negligible. Among the 12 staff at the Victorian Women’s Trust, a total of just 37 days of menstrual and menopausal leave have been taken over the five years since the policy was introduced.

At Future Super, about 40 per cent of the 122 staff to whom the policy applies took leave in 2022.

“What we’re seeing is people aren’t taking full days,” Dunlop says. “They’re taking a couple of hours in the morning while they’re waiting for their ibuprofen to kick in, or they’re on the couch with a hot water bottle or they’re getting through their work and logging off a little bit earlier at the end of the day.”

In much the same way as parental leave has transitioned from a nice-to-have corporate perk to a legislated entitlement, with many law firms now offering market-leading schemes, Dr Duffy says it’s vital to continue advocating for and creating inclusive workplaces, otherwise “the divide between men and women in Australia is going to remain the big gulf that it is”.

Likewise, says Crooks, workplaces must continue to transition away from environments that are “largely made by men, for men and of men” and towards becoming truly inclusive spaces that are “genuinely able to accept everyone”.

“It’s no longer a question of pushing women out of paid workplaces – the challenge is to modernise,” she says.