The Spanish Parliament on 20 February 2023 approved modifications to the law on sexual and reproductive health and abortion, including a new regulation on sick leave due to ‘secondary incapacitating menstruation’. Although the Act has not yet been published in the Official Gazette, we do not expect changes to this new regulation.
While the Government’s initial proposal was to give female employees a right to paid leave for incapacitating menstrual periods and oblige employers to continue paying salaries during that leave, the new regulation does not recognise such paid leave. However, the new regulation recognises ‘secondary incapacitating menstruation’ as a type of temporary sick leave for common, non-occupational illness leading to the payment of statutory sick leave benefits, the cost of which will be assumed by the State.
In brief summary, here is what the new regulation provides:
- ‘Secondary incapacitating menstruation’ means incapacity resulting from dysmenorrhoea (specific menstrual cramps) caused by a previously diagnosed pathology. Consequently, female employees must have a diagnosis of this pathology before they can take the sick leave. Likewise, and although not expressly stated in the new regulation, we understand that for each monthly incapacitating situation, female employees will have to obtain the corresponding public medical certificate.
- Employers will still be obliged to pay the employer’s social security contributions for the affected employee during the leave.
- The State will pay the statutory sick leave benefit for this leave, starting from the first day. The state sick leave benefit is calculated by applying a determined percentage to the regulatory base of the employee’s social security contributions for the month prior to the start of the period of sick leave. The percentage is 60% for common, non-work-related illness or injury (as would be the case for ‘secondary incapacitating menstruation’). For 2023, the minimum regulatory base for social security contributions ranges between EUR 1,260 and EUR 1,759.50 per month, and the maximum base is EUR 4,495.50 per month.
In any case, we will be waiting for the official publication of the Act to confirm the new regulation summarised above.