Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products): SOR/2023-78

Canada Gazette, Part II, Volume 157, Number 10

Registration
SOR/2023-78 April 21, 2023

CANADA LABOUR CODE

P.C. 2023-359 April 21, 2023

Whereas, under subsection 157(3)footnote a of the Canada Labour Code footnote b, regulations of the Governor in Council under subsection 157(1)footnote c or (1.1)footnote d of that Act are to be made in respect of occupational safety and health of employees employed on ships, trains or aircraft, while in operation, on the recommendation of the Minister of Labour and the Minister of Transport and are to be made in respect of occupational safety and health of employees employed on or in connection with exploration or drilling for or the production, conservation, processing or transportation of oil or gas in frontier lands, as defined in the Canada Petroleum Resources Act footnote e, on the recommendation of the Minister of Labour, the Minister of Indigenous Services and the Minister of Natural Resources, the latter taking into consideration any recommendations made by the Canadian Energy Regulator in relation to the regulations;

And whereas the Canadian Energy Regulator has not made any recommendations in relation to the Annexed Regulations;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, the Minister of Transport, the Minister of Indigenous Services and the Minister of Natural Resources, under sections 125footnote f, 157footnote g and 270footnote h of the Canada Labour Codefootnote b, makes the annexed Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products).

Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products)

Canada Occupational Health and Safety Regulations

1 Section 9.17 of the Canada Occupational Health and Safety Regulations footnote 1 is replaced by the following:

9.17 (1) The employer shall provide menstrual products, including clean and hygienic tampons and menstrual pads, in each toilet room.

(2) If it is not feasible to provide menstrual products in a toilet room, the employer shall provide them in another location in the same work place that is controlled by the employer, accessible by employees at all times and offers a reasonable amount of privacy.

(3) The employer shall provide a covered container for the disposal of menstrual products

On Board Trains Occupational Health and Safety Regulations

2 Subsection 6.15(4) of the On Board Trains Occupational Health and Safety Regulations footnote 2 is replaced by the following:

(4) The employer shall provide the following in each toilet room:

(5) If it is not feasible to provide menstrual products in a toilet room, the employer shall provide them in another location in the same work place that is controlled by the employer, accessible by employees at all times and offers a reasonable amount of privacy.

Oil and Gas Occupational Safety and Health Regulations

3 Section 10.13 of the Oil and Gas Occupational Safety and Health Regulations footnote 3 is replaced by the following:

10.13 (1) The employer shall provide menstrual products, including clean and hygienic tampons and menstrual pads, in each toilet room.

(2) If it is not feasible to provide menstrual products in a toilet room, the employer shall provide them in another location in the same work place that is controlled by the employer, accessible by employees at all times and offers a reasonable amount of privacy.

(3) The employer shall provide a covered container for the disposal of menstrual products

Maritime Occupational Health and Safety Regulations

4 (1) Section 70 of the Maritime Occupational Health and Safety Regulations footnote 4 is amended by striking out “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:

(2) Section 70 of the Regulations is renumbered as subsection 70(1) and is amended by adding the following:

(2) If it is not feasible to provide menstrual products in a sanitary facility, the employer must provide them in another location in the same work place that is controlled by the employer, accessible by employees at all times and offers a reasonable amount of privacy.

Aviation Occupational Health and Safety Regulations

5 Section 4.7 of the Aviation Occupational Health and Safety Regulations footnote 5 is replaced by the following:

4.7 (1) The employer must provide the following items in each washroom that contains a toilet:

(2) If it is not feasible to provide menstrual products in a washroom, the employer shall provide them in another location in the same work place that is controlled by the employer, accessible by employees at all times and offers a reasonable amount of privacy.

Administrative Monetary Penalties (Canada Labour Code) Regulations

6 Item 372 of Division 1 of Part 2 of Schedule 1 to the Administrative Monetary Penalties (Canada Labour Code) Regulations footnote 6 is replaced by the following:
Item

Column 1

Provision

Column 2

Violation Type
372 9.17(1) C
372.1 9.17(2) C
372.2 9.17(3)(a) B
372.3 9.17(3)(b) B
7 Item 47 of Division 2 of Part 2 of Schedule 1 to the Regulations is replaced by the following:
Item

Column 1

Provision

Column 2

Violation Type
47 4.7(1)(a) C
47.1 4.7(1)(b) B
47.2 4.7(2) C
8 Items 218 to 222 of Division 4 of Part 2 of Schedule 1 to the Regulations are replaced by the following:
Item

Column 1

Provision

Column 2

Violation Type
218 70(1)(a) B
219 70(1)(b) B
220 70(1)(c) B
221 70(1)(d) B
222 70(1)(e) C
222.1 70(1)(f) B
222.2 70(2) C
9 Item 215 of Division 5 of Part 2 of Schedule 1 to the Regulations is replaced by the following:
Item

Column 1

Provision

Column 2

Violation Type
215 10.13(1) C
215.1 10.13(2) C
215.2 10.13(3)(a) B
215.3 10.13(3)(b) B
10 Item 79 of Division 6 of Part 2 of Schedule 1 to the Regulations is replaced by the following:
Item

Column 1

Provision

Column 2

Violation Type
79 6.15(4)(a) C
79.1 6.15(4)(b) B
79.2 6.15(5) C

Coming into Force

11 These Regulations come into force on December 15, 2023.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Most Occupational Health and Safety Regulations (OHS Regulations) made under Part II (Occupational Health and Safety) of the Canada Labour Code (the Code) include requirements for employers to provide sanitation supplies such as toilet paper, soap, warm water, and a means to dry hands. Currently, there are no requirements for employers to provide menstrual products in federally regulated workplaces despite the fact that it is estimated that approximately 35% of their employees require menstrual products on a regular basis. The absence of menstrual products in the workplace can translate into physical and psychological health and safety risks for menstruating employees. This could include turning to improvised solutions or avoiding the workplace due to anxiety, shame and stigma, and could impact mental health, performance and productivity. In addition, the cost of menstrual products varies significantly from one location to another in Canada, and the financial burden is borne by menstruating employees.

Description: The Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products) [the Regulations] amend the sanitation provisions in OHS Regulations to require employers to provide menstrual products, including clean and hygienic tampons and menstrual pads, for the use of employees in each toilet room in workplaces controlled by them. Given the range of workplaces falling under federal jurisdiction, the Regulations allow employers to provide menstrual products in another location in the same workplace when it is not feasible to provide them in a toilet room, as long as the location is accessible by employees at all times and offers a reasonable amount of privacy and ensures that a covered container for the disposal of menstrual products are provided in each toilet compartment.

Rationale

Consultations: To date, the Labour Program of Employment and Social Development Canada (the Labour Program) has taken many actions to advance these Regulations in order to reduce the physical and psychological health and safety risks for those employees who menstruate. Specifically, in May 2019, a Notice of Intent was published in the Canada Gazette, Part I; in June 2021, a round table of experts was convened; in August 2021, a Summary of Findings and an online survey were published for public comment; in April 2022, a consultation session was held with a broad range of stakeholders; and lastly, in October 2022, the proposed Regulations were prepublished in the Canada Gazette, Part I, for stakeholder and public feedback. Overall, stakeholders indicated that the initiative has benefited from the passage of time since first being consulted in 2019, and a consensus now exists among stakeholders.

Cost-benefit statement: The quantitative analysis uses constant 2021 Canadian dollars, discounted to 2024 using a 7% discount rate. From 2024 to 2033, the present value of monetized costs is estimated to be $133.5 million and the present value of monetized benefits is estimated at $84.2 million. Qualitative benefits include a reduction in anxiety and absenteeism and increased productivity. Considering that personal hygiene is an important component of physical health, the Regulations will better protect the health and safety of federally regulated menstruating employees by requiring employers to provide menstrual products in workplaces under federal jurisdiction.

Regulatory cooperation and alignment: The amendments of requiring employers to provide menstrual products only applies to federally regulated workplaces, so there are no regulatory cooperation implications.

Issues

Currently, there are no requirements under the Code for employers to provide menstrual products in federally regulated workplaces despite the fact that it is estimated that approximately 35% of their employees require menstrual products on a regular basis. The absence of menstrual products in the workplace can translate into physical and psychological health and safety risks for menstruating employees because improvised solutions, such as using toilet paper and paper towels to act in place of tampons or menstrual pads are used when they do not have access to menstrual products. Psychological health may also be at an increased risk as menstruating employees may avoid the workplace due to the anxiety, shame and stigma that often surrounds menstruation, having a particular impact on mental health, performance and productivity. Government intervention is necessary in order for the Labour Program to fulfil its mandate to maintain healthy and safe workplaces.

Federally regulated workplaces span various industries and working conditions. In some circumstances, the absence of menstrual products in workplaces may cause physical and psychological health risks for menstruating employees who need them in situations where, for example, it is impossible to access the necessary products due to the location of the workplace such as remote work sites, rail, air, and road transportation. For menstruating employees in remote locations, the negative impact on their physical and psychological health may be heightened due to greater barriers, such as higher costs of, and the lack of accessibility to, menstrual products. The cost of menstrual products varies significantly from location to location in Canada, and the financial burden is borne by menstruating employees. The financial burden is particularly heavy for low-income earners and marginalized individuals who menstruate, including Indigenous and 2SLGBTQI+ people.

By amending the OHS Regulations, the Government of Canada is taking action to respond to the physical and psychological health and safety risks, while also advancing the Minister of Labour’s mandate commitment. This commitment is to lead the efforts to provide menstrual products in federally regulated workplaces to help ensure participation in work by requiring employers to provide menstrual products for their employees who menstruate.

Background

The Labour Program seeks to promote and sustain stable industrial relations and safe, fair, healthy, equitable and productive workplaces that are federally regulated. Part II of the Code, and the regulations made under that Part, set some requirements to protect federally regulated employees by ensuring workplaces are kept in a clean and sanitary condition. These requirements, which are set out in several OHS Regulations made under the Code, include requirements for employers to provide sanitation supplies such as toilet paper, soap, warm water, and a means to dry hands.

There has been increasing public awareness and acknowledgement that menstrual products constitute necessary items that are essential to the health of a large proportion of Canadians. Members of the public have raised concerns to the Labour Program that the absence of menstrual products in the workplace could lead to hygiene and health issues. Menstruating employees face additional challenges by not having menstrual products readily available to them while at work. The unexpected start of a menstrual period could lead to absenteeism, which ultimately impacts workplace productivity. As such, in May 2019, the Labour Program published a Notice of Intent (NOI) in the Canada Gazette, Part I, outlining a consideration to amend OHS Regulations to require employers to provide menstrual products in the workplace for use by menstruating employees.

Specifically, in October 2020, the Labour Program received a petition with 2 666 signatures from Canadians calling upon the Government to require all federally regulated workplaces to provide menstrual products (tampons and menstrual pads) in toilet rooms. The petition also called on the Government to address menstrual equity at the national level by prioritizing its work on this initiative.

Later, in December 2021, the Government released the Minister of Labour’s mandate commitment, which reaffirmed the Government’s commitment to lead the efforts to require federally regulated employers to provide menstrual products in the workplace to help ensure menstruating employees’ participation in work.

Around the world, several menstrual product initiatives have recently emerged. On a provincial level, British Columbiafootnote 7 and Nova Scotiafootnote 8 recently introduced the provision of menstrual products in all schools across the provinces, requiring that menstrual products be provided to all students who may need them. On an international level, several countries have implemented similar menstrual products initiatives. For example, Scotland recently became the first country to provide free and universal access to menstrual products requiring local authorities and organizations to ensure that a choice of different types of products are made available. In addition, Australia, France, Botswana, and South Africa have also begun providing menstrual products in schools. In February 2021, New Zealand announced that all schools will have access to menstrual products such as tampons and menstrual pads to address reports that students were skipping school because they were not able to afford these products.footnote 9

In terms of menstrual product regulations, some menstrual products are classified as medical devices in Canada. In particular, tampons are considered Class II medical devices. Menstrual pads have not been considered to fall under the medical devices framework.footnote 10 Health Canada is responsible for ensuring that the products sold in Canada are safe, effective, and of high quality based on requirements for licensing, quality manufacture, and post-market surveillance.

Objective

The main objective of the amendments to the OHS Regulations is to ensure menstruating employees in federally regulated workplaces have access to clean and hygienic menstrual products at all times while working in the workplace controlled by the employer. Unrestricted access to menstrual products would better protect the physical and psychological health and safety risks for menstruating employees. By ensuring employees’ access to menstrual products in the workplace at all times, this will also advance the Minister of Labour’s 2021 mandate commitment. In addition, this initiative supports the Government’s broader gender-based analysis plus (GBA+) initiatives:

Description

The Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products) amend five OHS Regulations:

The Regulations amend the sanitation provisions in the specified OHS Regulations to require federally regulated employers to provide menstrual products, including clean and hygienic tampons and menstrual pads, in each toilet room regardless of their marked gender. The employer will decide which brands of products they make available as long as, at minimum, they provide tampons and menstrual pads. The employer is not required to seek employee input in deciding what brands to provide to comply with these Regulations; however, they are encouraged to do so on a voluntary basis.

Given the range of workplaces falling under federal jurisdiction (such as non-traditional, mobile, or remote workplaces),footnote 11 if it is not feasible to provide the menstrual products in each toilet room, employers will also have the flexibility to provide the menstrual products in another location in the same workplaces controlled by the employer that is accessible by employees at all times and offers a reasonable amount of privacy. For example, employers with not easily accessible workplaces, such as remote work sites, rail, air, and road transportation, may consider providing menstrual products in office supply cabinets in employees’ designated resting rooms or in a menstrual product kit that can be easily carried.

The Regulations will also ensure that a covered container for the disposal of menstrual products is provided in each toilet compartment.

The Regulations will also provide potential benefits for menstruating employees, as raised by the public, and could help reduce

As a result of comments submitted during prepublication in the Canada Gazette, Part I, the Labour Program made the following changes:

Further to prepublication in the Canada Gazette, Part I, minor revisions were made to the Regulations for the provisions to read more clearly. These changes did not impact employer obligations.

Impacts on the cost-benefit analysis as a result of the changes to the prepublication proposal are discussed in the “Benefits and costs” section of this statement.

In addition, to further advance the Government’s commitment to support gender equity, through an upcoming distinct initiative, the Labour Program will review the sanitation provisions in the five OHS Regulations to modernize the language to ensure its inclusiveness.

Designation of violations

To ensure these requirements are enforceable through administrative monetary penalties (AMPs), consequential amendments will be made to the Administrative Monetary Penalties (Canada Labour Code) Regulations (AMPs Regulations). The AMPs Regulations are made under Part IV (Administrative Monetary Penalties) of the Code, which was brought into force on January 1, 2021, to promote compliance with requirements under Part II and Part III (Labour Standards) of the Code. The AMPs Regulations designate and classify obligations under Parts II and III of the Code and associated regulations made under each of these parts. Only designated violations can be subject to an AMP.

As indicated in the prepublication, failure to comply with the new regulatory requirement for the provision of a covered container for the disposal of menstrual products will be classified as type B violations and failure to comply with the new regulatory requirement for the provision of menstrual products will be classified as type C violations.

Regulatory development

Consultation

Notice of intent

In May 2019, the Labour Program published a NOI in the Canada Gazette, Part I, outlining a consideration to amend the OHS Regulations to require employers to provide menstrual products in the workplace for use by menstruating employees. The NOI provided stakeholders and members of the public the opportunity to provide input on the proposed consideration. The majority of individuals who responded to the NOI support the consideration of the initiative.

What We Heard

In December 2020, the Labour Program published a What We Heard report, which summarized the feedback received following the publication of the NOI in the Canada Gazette, Part I. Stakeholders and members of the public shared opinions on what type of menstrual products should be provided and where the products should be located in the workplace. In addition, respondents commented on the importance of creating safe and equitable access to menstrual products, as well as the need to consider potential financial implications of providing menstrual products in the workplace.

The following statistics were produced from 42 submissions of feedback received:

Additional feedback focused on the following issues:

Round table of experts

Following publication of the What We Heard report, in June 2021, the Labour Program convened a round table of experts who have experience in developing, implementing and/or evaluating policies or initiatives. Their initiatives aim to increase access to menstrual products in workplace, community or government settings. During the round table, experts shared how other jurisdictions are implementing existing initiatives in terms of accessibility of products and distribution. Twelve experts attended the round table from the following groups:

Summary of Findings and online survey

Based on the feedback received from the expert round table, the Labour Program published a Summary of Findings and an online survey for public comment regarding the proposal to require federally regulated employers to provide menstrual products in the workplace. The survey opened on August 3, 2021, and closed on September 7, 2021. The questions pertained to the potential provision of menstrual products in federally regulated workplaces, including in-office, non-traditional, mobile, and remote workplaces. In total, the Labour Program received 734 responses from federally regulated employers, employees, unions, and members of the public expressing a broad spectrum of opinions. Across a wide range of questions, respondents shared preferences and potential concerns about how employers should provide menstrual products in federally regulated workplaces.

In both traditional and non-traditional workplaces, over 80% of respondents stated that employees should be provided with both menstrual pads and tampons. A majority of respondents stated that employees in remote and mobile workplaces should be provided with menstrual products, although potential logistical concerns were cited as an issue. Additionally, the method of distributing menstrual products most popular among respondents was dispensers inside the toilet room or toilet compartment (stall). Although some respondents disagreed with providing products in men’s and all-gender toilet rooms, many believed that further consultation with transgender and non-binary employees or advocacy groups for the 2SLGBTQI+ communities should determine which toilet rooms have access to menstrual products. Overall, of those who did not support the initiative, cost was cited as a main concern. Respondents stated that it was important to consult existing employees on this initiative. Finally, it was suggested that educational material be provided to employers and employees about the initiative.

Consultation

On April 4, 2022, the Labour Program held a consultation session with a broad range of stakeholders from the Occupational Health and Safety Advisory Committee (OHSAC) representing federally regulated employers and employees. Indigenous organizations also attended. Prior to the session, a consultation paper with discussion questions was provided to stakeholders and Indigenous organizations. In total, 28 representatives from the following organizations took part, in addition to departmental representatives from Transport Canada, Natural Resources Canada, Canada Energy Regulator, Indigenous Services Canada, and Women and Gender Equality Canada who participated as observers:

In addition, stakeholders and Indigenous organizations had the opportunity to provide written feedback, with one employee representative choosing to provide a submission. Overall, they agreed that menstrual products should be provided in all workplaces controlled by the employer and to all employees, regardless of gender. The feedback can be summarized by five themes:

1. Use of toilet compartments (stalls)

Although federally regulated workplaces include a wide range of toilet room arrangements, participants indicated that in most cases, providing menstrual products inside toilet compartments (stalls) was the best option. Toilet compartments (stalls) are seen as offering more privacy than other alternatives, such as toilet room counters or a break room, as this allows employees to take a menstrual product without their co-workers or employer knowing in the moment. This privacy concern was cited as especially important for employees who do not want to identify themselves as someone who menstruates due to negative stigma.

While toilet compartments (stalls) were considered the best option for providing menstrual products in many workplaces, the question of which toilet rooms and compartments (stalls) to provide them in was discussed. All participants agreed that employees should be able to access menstrual products regardless of whether they use men’s, women’s, or all-gender toilets. In toilet rooms with multiple compartments (stalls), it was suggested by some that not every compartment (stall) be required to have menstrual products.

2. Flexibility of regulations

While both employee and employer representatives agreed that menstrual products should be provided in toilet rooms when feasible, employers asked for flexibility in how they should be dispensed. Due to the wide range of federally regulated workplaces, employers suggested that overly prescriptive regulations could have unintended consequences on the implementation or become prohibitively expensive to implement in some workplaces.

Non-traditional workplacesfootnote 12 were all cited as having complex and specific needs that would make it difficult to find one-size-fits-all rules to be created. Some recommended simply prescribing that menstrual products must be provided to all employees while respecting their privacy to ensure regulations can be implemented in all types of workplaces.

3. Issue with existing sanitation regulations

Stakeholders indicated that some requirements within the current OHS Regulations should be changed along with the proposed Regulations. They raised the issue of the current regulatory requirements included in the OHS Regulations to provide a covered container for the disposal of menstrual products in each toilet room used by “female” employees. Since menstrual products are to be provided to all employees, a covered container for the disposal of menstrual products should be in all toilet compartments regardless of the gender identification.

4. Implementation

Despite their support, some employers expressed concerns over potential implementation timelines. They cited the need for structural changes to existing washrooms, which would take time and resources, especially given the impacts of the COVID-19 pandemic. To mitigate this concern, they noted that temporary measures could be implemented quickly while permanent solutions were being worked on; however, this may not be necessary due to the period of time provided to employers following registration of the Regulations. In terms of the coming-into-force date of the Regulations, one stakeholder indicated that one year seemed reasonable.

Some stakeholders suggested that educational material be provided to employers and employees in order to set expectations around the use of products and ensure gender equity and inclusivity.

5. Costs

During the consultation session, federally regulated employers were asked if they had a sense of the cost of providing menstrual products and disposal containers for menstruating employees. The federally regulated employers in attendance could not provide an estimate of costs at this time. However, one employee representative indicated that the cost due to lost time related to an unforeseen menstruation incident should be considered since it is lost hours for the employee, assuming they are unpaid while away from work. The same employee representative felt that providing menstrual products in the workplace would be very affordable for the employer in the federal sector and that menstrual products should be recognized as an essential good, similar to toilet paper that is provided by employers.

Conclusion

The Labour Program heard many different perspectives from the stakeholders who attended the consultation session that informed the Regulations to provide menstrual products while preserving occupational health and safety in federally regulated workplaces.

Finally, stakeholders indicated that the initiative has benefited from the passage of time since the first consultation in 2019, and a strong consensus now exists among stakeholders. The Regulations should, however, be practical and provide some degree of flexibility.

Prepublication in the Canada Gazette, Part I

The Regulations were prepublished in the Canada Gazette, Part I, on October 15, 2022. As part of the federal regulatory process, Canadians were invited to submit their comments through the Online Regulatory Consultation System (ORCS). The 30-day comment period ended on November 13, 2022.

During the comment period, the Labour Program received 46 comments and email submissions in total (41 ORCS, 5 emails) on the initiative. Twenty-nine comments were supportive of the proposal (63%), twelve were negative (26%) and five were neutral (11%). Fifteen commenters remained anonymous (33%), eleven represented organizations (24%) and twenty commented as individuals (43%). One federally regulated employer submitted comments. However comments were received from associations representing groups of employers.

Overall, feedback received on the initiative was positive (63%) indicating the initiative could further enhance the health and wellbeing of federally regulated employees and promote Canada’s values of equity and inclusivity. Several common themes included the impact of the initiative, implementation and location, cost, coming-into-force date, and enforcement.

Subject to the Treasury Board of Canada Secretariat and Public Services and Procurement Canada’s Guidelines for Publication and Redaction of Comments, regulators are required to publish all comments on proposed regulations on a single platform allowing the received comments to be viewed publicly. Out of 46 total comments received, 4 comments required redactions, as they were deemed to contain profanity, bigotry, external links, or footnotes. Any comments that contained redactions were posted with the following notice: A part of this comment was redacted as it did not comply with the Government of Canada standards set out in the Privacy Notice and Terms of Use.

The Labour Program published all comments provided through ORCS and feedback received by email onto the Canada Gazette for public access.

The feedback can be summarized into four themes:

1. Impact of provision of menstrual products

Respondents who provided positive comments stated that, from their perspective, this initiative will have a beneficial impact on stress and anxiety about accessing menstrual products in the workplace, that it is essential for addressing equity, and that some employees feel the benefits outweigh the costs for both employees and employers.

Negative comments stated that adults should be able to manage menstruation themselves without support of government regulations, that the Labour Program is overstating the psychological impacts addressed by the proposal, and that discrimination based on menstruation does not exist.

One Canadian charitable organization commented that the Labour Program should conduct more consultation with First Nations that have federally regulated workplaces on reserve. Shortly before prepublication in the Canada Gazette, Part I, modern treaty holders, other Indigenous governments, and Indigenous organizations were emailed an engagement paper and invited to inform the Regulations. Details on this engagement are included in the “Modern treaty obligations and Indigenous engagement and consultation” section of this statement.

The Labour Program has reviewed this feedback, but has not made amendments to the Regulations as respondents were sharing personal views on the initiative.

2. Implementation and location

Two employer representatives and one stakeholder have shared that many federally regulated businesses lease the buildings that they use and therefore do not have direct control over the toilet rooms. They shared concerns about building restrictions preventing employers from making changes to existing toilet rooms to meet the requirements for disposal containers and potentially installing dispensers for menstrual products. Many spaces also have toilets rooms used by multiple building tenants, are not under direct control of the employer, and are not just for the use of their employees.

Additionally, privacy was noted as a concern, particularly for non-traditional workplaces. Unions and individual respondents stated that if employers are choosing to provide products in an alternate location, it must be because it is not feasible to not provide them in a toilet room, and not simply because of the cost of providing in every toilet room. Employees’ privacy may be compromised by providing products in a communal space and this must be considered.

One employer representative suggested that employers could install a machine that dispenses products at an interval (i.e. every minute) so employees cannot potentially take more products than necessary for one use.

The Labour Program has considered this feedback but has not adjusted the Regulations, as employers are not required to make physical changes to the toilet rooms and can dispense menstrual products in a way that works for them. Given the range of workplaces falling under federal jurisdiction (such as building types [owned or leased], non-traditional, mobile or remote workplaces), the Regulations provide employers with the flexibility to provide the menstrual products in toilet rooms or in another location in the same workplaces controlled by them (e.g. office supply cabinets) when it is not feasible to provide the products in each toilet room, as long as the other location is accessible by employees at all times and offers a reasonable amount of privacy. In addition, a machine that is equipped with a timer and dispenses products could be very costly to employers and the Regulations are designed to provide flexibility.

One union commented that the AOHSR should specifically state that menstrual products must be provided on airplanes. The Labour Program has not amended the AOHSR, as airplanes are already covered by the Regulations because they are a workplace controlled by the employer.

One stakeholder suggested that the MOHSR provision related to the requirement for disposal of menstrual products should be revised from requiring a “plastic bag” to “a bag that is impervious to moisture.” The Labour Program has amended the Regulations, as the intention is to provide employers with the flexibility to choose from a broad range of types of lining for the container and this change will potentially allow environmentally friendly options.

Several respondents noted that reusable and/or eco-friendly products should be provided (such as menstrual cups, cloth pads, or organic tampons and menstrual pads). Respondents who call for reusable products stated that they believe that they are more cost-effective for the employer over time. In addition, they shared that some reusable products, which can be used longer (up to 12 hours, compared to three or four hours for disposable products), can decrease anxiety for people working in non-traditional work sites and who might have limited access to bathrooms.

Two unions and a Canadian charitable organization urged the Labour Program to require employers to consult with employees and their unions about the types and brand of products they need. These respondents stated they believe that this will ensure that no new risks are introduced and will increase safety and promote psychological wellness for employees.

The Labour Program has considered this feedback but has not adjusted the Regulations to require employers to provide reusable and/or eco-friendly menstrual products. The intent of the Regulations is to provide federally regulated employees with access to clean and hygienic tampons and menstrual pads in workplaces when needed, but with the flexibility for employers to choose products in a way that works for them. As with the other current sanitation requirements, employers will be responsible for determining what brands and products to provide while making sure they meet the minimum requirements (i.e. provision of pads and tampons) set in the Regulations. Though respondents stated that they believe it is more cost-effective for the employer over time to provide reusable and/or eco-friendly menstrual products, this is only true if the employee continues to use that same product and have it on hand, which is not the intention behind these Regulations.

3. Benefits and costs

Several comments on the cost-benefit analysis were provided during the consultation period. Comments were received from unions, individuals, and one employer representative. Feedback was divided on the topic of cost. No individual federally regulated employers submitted comments on costing and, as a result, the Labour Program did not obtain costing information from an employer’s perspective. One individual and one union indicated they felt the benefits of the initiative far outweighed the monetary cost.

One individual and one union commented that the assumed uptake rate of 100% (i.e. percentage of menstruating employees who would use the employer-provided tampons and pads for all of their menstrual product needs while in their workplace) is overestimated because employees will generally use these products as a last resort, particularly if the employer selects an “inferior product.”

Several individuals and one employer representative have expressed disagreement and concerns with some assumptions and results presented in the cost-benefit analysis. In general, these stakeholders view the qualitative benefits as being negligible because they argue that the linkages between the Regulations and these benefits are weak. Several individuals stated that very few people get caught by surprise with no menstrual products in hand when needed. One individual and one employer representative commented that the Regulations are not equitable because they provide products to only to a small percentage of the Canadian workforce. One employer representative said that the Regulations may deteriorate working conditions for employees in businesses where compliance poses a challenge and believes that the issue of access to menstrual products is societal in nature and, therefore, requires measures implemented and funded by the government as opposed to businesses.

After review, it was determined that the cost-benefit analysis published in the Canada Gazette, Part I, properly reflects research findings on the subject and comments received in prepublication. Additional text was added to the qualitative benefit sections to acknowledge the view expressed by some stakeholders that the benefits are likely significant.

Six individuals commented that the proposal is using taxpayers’ money for menstrual products for people with “good-paying jobs.” One individual stated that money should go towards providing products for those in poverty/schools or for the entire Canadian population. One individual and one employer representative noted that this initiative should target more than just federally regulated workers, as it leaves out most of Canada’s workforce (which is under provincial or territorial jurisdiction).

The Labour Program has considered this feedback, but has not adjusted the Regulations, as requiring menstrual products in places other than federally regulated workplaces, such as education facilities or non-federally regulated workplaces, is out of the scope for this initiative and outside of the Labour Program’s jurisdiction.

4. Coming into force and compliance

Three employer representative groups and a stakeholder requested a longer coming-into-force period. Arguments for a longer coming-into-force date (between 12 to 18 months) included time and resources required to perform structural changes to existing toilet rooms under employers’ direct control, time to decide which brands of products to provide, including the time to gather employee feedback, to select suppliers, and to enter into contracts with suppliers through procurement functions. In response to this feedback, the Regulations were amended. Rather than a six-month coming-into-force period, the Labour Program has decided on a fixed coming-into-force date of December 15, 2023, as respondents indicated that they would like to have additional time to become in compliance with the new obligations.

Several commenters called for strong enforcement of the proposed Regulations, especially by using AMPs for non-compliance. No respondents commented on the proposed AMP designations that were included in the prepublished Regulations. As a result, the provisions related to AMPs remain unchanged.

Modern treaty obligations and Indigenous engagement and consultation

The Labour Program conducted the assessment of modern treaty implications and found that the amendments would not disproportionately impact modern treaty holders. Depending on specific activities within modern treaty areas, the amendments may be applicable to federally regulated workplaces within their territory, as the Code continues to apply.

Modern treaty holders, other Indigenous governments, and Indigenous organizations had the opportunity to inform the Regulations through an engagement discussion paper titled “Labour Standards and Occupational Health and Safety Engagement – Regulatory Initiatives under Part II and III of the Canada Labour Code” that was emailed to them for their comments in fall 2022. The Labour Program received comments on this initiative from one Indigenous organization. While much of their feedback was out of scope for this initiative, they did suggest that reusable or eco-friendly products should be provided. The discussion paper was supported and facilitated through dialogue with key Indigenous partners. The paper and discussion questions were developed in a way that was culturally sensitive and respectful given the spiritual significance of the menstrual cycle for many First Nations, Inuit, and Métis communities.

As noted in the Consultation section of this statement, the Labour Program has not adjusted the Regulations to require employers to provide reusable and/or eco-friendly menstrual products. The intent of the Regulations is to provide federally regulated employees with access to clean and hygienic tampons and menstrual pads in workplaces when needed, but with the flexibility for employers to choose products in a way that works for them.

Instrument choice

The options considered were maintaining the status quo or amending existing provisions in the OHS Regulations. Other options, such as a non-regulatory approach including policy guidelines, would not properly address the physical and psychological health risks menstruating employees face as a result of inadequate access to menstrual products in the workplace. Regulatory amendments set out clear requirements for employers to comply with and for Labour Program health and safety inspectors to follow to ensure this compliance. Therefore, a non-regulatory approach would not allow for menstrual products to be controlled across industries. Employers could provide menstrual products for free or at a certain cost in the workplace on a voluntary basis, but they would not be legally required to do so. The Labour Program is not currently aware of any federally regulated employers that voluntarily provide menstrual products in their workplace despite ongoing public support to do so.

Prior to this initiative, there were no requirements in place that require employers to provide menstrual products in federally regulated workplaces. Amending the existing provisions in the OHS Regulations is the best option to ensure enforcement and protection of the health and safety of menstruating employees. In addition, regulations are necessary to ensure equivalent standards across federally regulated workplaces, which is the intent of this initiative, as the non-regulatory approach would not ensure the same workplace standards. None of these factors could be addressed via the status quo; therefore, a regulatory option was selected.

Regulatory analysis

Updates following prepublication

As indicated, two changes to the Regulations were made as a result of feedback received during prepublication. The first change (introducing flexibility in the MOHSR to allow stakeholders to choose from a broader range of types of lining for the container and the ability to choose environmentally friendly options) did not impact the cost-benefit analysis because the analysis already contains assumptions reflecting the flexibility provided by the change. The second change, amending the coming-into-force date, did result in an adjustment to the present value base year used to discount the monetized benefits and costs from 2022 to 2024. This change leads to higher monetized benefits and costs compared to the cost-benefit analysis published in the Canada Gazette, Part I. As a result, the total present value of monetized costs changed from $116.6 million to $133.5 million while the total present value of monetized benefits changed from $73.5 million to $84.2 million. Overall, the present value of net costs changed from $43.1 million to $49.3 million.

Benefits and costs

The present value of total costs due to the Regulations will be an estimated $133.5 million over the 2024–2033 period. These costs will comprise incremental operating expenses for the purchase of menstrual products and incremental capital expenses for the purchase of menstrual product dispensers and covered containers. Although the Regulations will not require employers to purchase and install menstrual product dispensers, it is expected that large business employers will choose to install these dispensers in order to maintain the products in a sanitary condition. Employers will also assume labour costs to pay their maintenance staff to install the dispensers and covered containers, and they will pay their custodial staff to replenish the stock of menstrual products as employees use them. Monetized benefits will arise due to the reduced expenditure on menstrual products for menstruating employees. With monetized benefits of $84.2 million, the Regulations will yield a net cost of approximately $49.3 million over the 10-year analytical period. The Regulations will also result in qualitative benefits, including a reduction in anxiety and a reduction in absenteeism.

Analytical framework

Costs and benefits for the 10-year period between 2024 and 2033 are expressed in constant 2021 Canadian dollars and are discounted to 2024 at a discount rate of 7%. Impacts on the federal public service (FPS) and the federally regulated private sector (FRPS) were evaluated by comparing the direct costs and benefits in the baseline scenario against those in the regulatory scenario.footnote 13 The baseline scenario depicts what is likely to happen in the future if the Regulations are not made by the Government of Canada, whereas the regulatory scenario provides information on the intended outcomes of the Regulations.

Baseline scenario

No employers in the federal jurisdiction are providing or are expected to provide menstrual products to their employees in the absence of the Regulations. While there may be case-by-case exceptions to this assumption, the Labour Program was unable to find reliable information on this matter at the time of the analysis. To the extent that some federal jurisdiction employers may currently provide menstrual products to their employees, the impacts below will be somewhat of an overestimate.

The existing OHS Regulations require employers to provide a covered container for the disposal of “sanitary napkins” in toilet rooms that are used by women. Full compliance with this requirement is assumed in the baseline scenario for all women’s toilet rooms, as well as for all gender-neutral toilet rooms.

In the baseline scenario, employees who lack menstrual products while they are menstruating have to find alternatives, which may include asking co-workers, buying the products in nearby shops or using improvised products such as toilet paper. This may result in embarrassment and/or anxiety.

Regulatory scenario

Federal jurisdiction employers will be required to provide menstrual products to their employees in the regulatory scenario. Although the Regulations will not require employers to purchase and install menstrual product dispensers, it is expected that large business employers will choose to install these dispensers in order to maintain the products in a sanitary condition. Small business employers are expected to provide the products directly out of the box, rather than purchasing dispensers.

The Regulations will also require one covered container for the disposal of menstrual products to be installed in every toilet compartment (stall), in women’s, men’s, and gender-neutral toilet rooms. Therefore, these covered containers will be added to all toilet compartments (stalls) in men’s toilet rooms across the federal jurisdiction as a result of the Regulations.

Since tampons and menstrual pads will be available directly in the workplace under the control of their employers (in the toilet rooms or in another location in the same workplace), employees will be able to access menstrual products whenever they need them. By accessing menstrual products in the workplace, employees will be able to avoid undue stress and anxiety that arise when they lack menstrual products during their menstruation, and they will no longer need to leave work to obtain these products.

Costs
Costs to employers to purchase tampons and menstrual pads

Employers will bear additional operating costs to supply tampons and menstrual pads in their toilet rooms, or if not feasible, in another location in the same workplace also controlled by the employer that is accessible by employees at all times and offers a reasonable amount of privacy. One of the greatest uncertainties in the analysis of this item is the uptake rate among employees, since the proportion of employees who will regularly use employer-provided tampons and menstrual pads is unknown. Due to brand and quality preferences, among other reasons, it is possible that some employees will continue to use their own menstrual products in the regulatory scenario. In the absence of strong evidence to support any alternative value, the analysis uses an uptake rate of 100% to avoid underrepresenting the costs associated with this item. In other words, the cost estimates involve the assumption that all menstruating employees will use the employer-provided tampons and menstrual pads.

After removing a subset of the sample of menstruating employees who are expected to be either pregnant or on maternity, paternity, or parental leave in each month throughout the analysis, the present value of the total costs associated with the purchase of menstrual products is estimated to be $84.2 million.

Costs to employers to purchase menstrual product dispensers

One menstrual product dispenser is assumed to be purchased for each toilet room, regardless of gender, across all work sites under the control of large business employers in the federal jurisdiction. With an assumed unit cost of $360 for each menstrual product dispenser, the present value of the total costs associated with this item is estimated to be $35.3 million.

Costs to employers to purchase covered containers for the disposal of menstrual products

Since existing regulations already require covered containers to be provided in all women’s and gender-neutral toilet rooms, the analysis of this item is limited to the purchase of one such container per men’s toilet room. With a unit cost of $38 for each covered container, the present value of the total costs associated with this item is estimated to be $3.5 million.

Costs to employers to pay staff to install menstrual product dispensers and covered containers

The menstrual product dispensers and covered containers described above will need to be installed. This installation will entail marking drill holes with a pencil, drilling pilot holes, inserting plastic anchors, and then fixing the objects to a wall with screws, which is expected to take approximately 10 minutes in total per unit. Based on the National Occupational Classification, employees who will perform this task are assumed to fall under the category “Other installers, repairers and service and material handlers.” The present value of the 10-year costs associated with this item is estimated to be $1.1 million.

Costs to employers to pay staff to fill menstrual product dispensers with tampons and menstrual pads

The analysis assumes that employers will pay members of their staff in the “Service support and other service occupations, not elsewhere classified” category to fill and refill menstrual product dispensers as employees use the tampons and menstrual pads therein throughout the analytical period. The total present value of costs for this item is estimated to be $9.4 million.

Government costs for compliance promotion and enforcement

There will be additional costs to Government associated with compliance monitoring and enforcement; however, these activities will be carried out using existing Labour Program resources. Based on internal consultations, these costs are expected to be negligible and were therefore not explicitly modelled.

Consequential amendments to the Administrative Monetary Penalties Regulations

Stakeholders who fail to comply with the Regulations may face additional penalties due to the consequential amendments to the AMPs Regulations. This potential impact will be out of scope of the cost-benefit analysis.

Benefits
Reduced anxiety and embarrassment (benefit to employees)

Evidence suggests that starting one’s period unexpectedly without the needed menstrual products can lead to temporary anxiety, embarrassment and stress. For example, in a U.S. national study commissioned by Free The Tampon Foundation, 86% of U.S. women aged 15–54 revealed that they have started their period unexpectedly without the supplies they needed. In these situations, 57% indicated that they felt or would feel embarrassed and 43% felt or would feel anxious/stressed. Another study from Plan International Canada shows that 66% of women answered “Yes” to the following question: “Have you been unprepared when your period started?”

For the purpose of this cost-benefit analysis, data on the annual frequency of lacking products during menstruation in the workplace would be useful information to have, whereas the studies cited above do not reveal how often respondents have experienced a lack of menstrual products. It is possible that respondents who answered “yes” in these surveys could have had this experience once, or on a regular basis. Nevertheless, despite the lack of information on annual frequency, these studies both show that lacking menstrual products when they are needed is somewhat common and, therefore, the provision of menstrual products in the workplace will enable employees to avoid this unpleasant experience. There are approximately 470 000 menstruating employees, out of the 1.3 million total employees in the federal jurisdiction. Based on the Canadian Occupational Projection Survey, this demographic is expected to grow at an annual rate of approximately 1% over the analytical period.

No data is available that would permit the quantification of this benefit. It is likely that the number of menstruating employees forgetting their menstrual products is small. As a consequence, these benefits are expected to be correspondingly small. However, one individual indicated during the comment period of the Canada Gazette, Part I, that the reduction in anxiety will be significant for them.

Reduced absenteeism and increased productivity (benefit to employers)

Based on the Free The Tampon survey mentioned above, out of those who have started their period unexpectedly without the supplies they need,

In the regulatory scenario, employees will be able to access menstrual products directly in the toilet room when they are needed. For those who will have left the workplace to obtain menstrual products in the baseline scenario, this will result in avoided absenteeism and increased productivity; however, no data is available that will permit the quantification or monetization of this benefit. It is likely that the number of menstruating employees forgetting their menstrual products is small. As a consequence, these benefits, are expected to be correspondingly small. However, one individual indicated during the comment period of the Canada Gazette, Part I, that hey have missed an hour or more of work to manage the consequences associated with not having products readily accessible.

Reduced menstrual product expenditures (benefit to employees)

The provision of menstrual products in federal jurisdiction workplaces will yield a benefit to menstruating employees in terms of cost savings on menstrual products that they will otherwise have to purchase. The present value of this benefit over the 10-year analytical period is estimated to be approximately $84.2 million.

Cost-benefit statement
Table 1: Monetized costs
Impacted stakeholder Description of cost 2024 2025–2032 2033 Total
(present value)		 Annualized value
Employers Purchase tampons and menstrual pads $10,786,617 $67,018,150 $6,391,839 $84,196,606 $11,987,702
Employers Purchase menstrual product dispensers $33,367,741 $1,789,944 $170,654 $35,328,340 $5,029,961
Employers Purchase covered containers $3,348,201 $177,073 $16,859 $3,542,133 $504,320
Employers Install menstrual product dispensers and covered containers $1,038,552 $55,247 $5,263 $1,099,062 $156,482
Employers Replenish stock of menstrual products in toilet rooms $1,199,891 $7,455,020 $711,021 $9,365,931 $1,333,498
All stakeholders Total costs $49,741,001 $76,495,434 $7,295,637 $133,532,072 $19,011,963

Note: Figures may not add up to totals due to rounding.

Table 2: Monetized benefits
Impacted stakeholder Description of cost 2024 2025–2032 2033 Total
(present value)		 Annualized value
Employees Reduction in tampon and menstrual pad expenditures $10,786,617 $67,018,150 $6,391,839 $84,196,606 $11,987,702

Note: Figures may not add up to total due to rounding.

Table 3: Summary of monetized costs and benefits
Impacts 2024 2025–2032 2033 Total
(present value)		 Annualized value
Total costs $49,741,001 $76,495,434 $7,295,637 $133,532,072 $19,011,963
Total benefits $10,786,617 $67,018,150 $6,391,839 $84,196,606 $11,987,702
NET IMPACT –$38,954,385 –$9,477,284 –$903,797 –$49,335,466 –$7,024,260

Note: Figures may not add up to totals due to rounding.

Qualitative impacts

Positive impacts

Distributional analysis

The estimated costs of the Regulations can be disaggregated to show the distribution of impacts among various stakeholder groups.

Table 4: Monetized costs
Industry 2024 2025–2032 2033 Total
(present value)		 Annualized value
Core public administration $7,148,896 $19,523,901 $1,862,052 $28,534,849 $4,062,721
Agencies $2,046,479 $5,393,536 $514,397 $7,954,412 $1,132,529
Other FPS $531,889 $385,728 $36,785 $954,401 $135,885
Air transportation $3,292,237 $3,316,044 $316,201 $6,924,482 $985,890
Rail transportation $2,698,591 $7,834,400 $747,464 $11,280,455 $1,606,083
Maritime transportation $2,178,286 $800,688 $76,347 $3,055,322 $435,009
Road transportation $4,271,605 $5,241,332 $499,861 $10,012,798 $1,425,597
Postal and pipelines $9,454,674 $7,334,086 $699,414 $17,488,174 $2,489,923
Banks $12,717,331 $14,575,921 $1,390,084 $28,683,336 $4,083,862
Feed, flour, seed and grain $799,848 $859,104 $81,931 $1,740,882 $247,862
Telecommunications and broadcasting $3,838,156 $7,931,347 $756,428 $12,525,931 $1,783,411
Other FRPS $763,011 $3,299,347 $314,672 $4,377,030 $623,191
Total costs $49,741,001 $76,495,434 $7,295,637 $133,532,072 $19,011,963

Note: Figures may not add up to totals due to rounding.

Compared to the federal public service, the federally regulated private sector has more employees, workplaces, and toilet rooms. This means that, in aggregate, employers in the FRPS will carry relatively more ongoing costs related to the purchase of menstrual products and relatively more upfront costs associated with the purchase of menstrual product dispensers and covered containers. Costs to FRPS and FPS employers will be highest in the first year of implementation, since this is the year in which the majority of upfront costs will be borne. The following bar graph illustrates this trend over the 10-year analytical period.

Annual discounted costs (in millions), federally regulated private sector and federal public service

Annual discounted costs (in millions), federally regulated private sector and federal public service – Text version below the graph

Figure Annual discounted costs (in millions), federally regulated private sector and federal public service - Text version

The bar graph depicts the annual discounted costs (in millions) of the federally regulated private sector and the federal public service.

Annual discounted costs (in millions), federally regulated private sector and federal public service
2024 2025 2026 2027 2028 2029 2030 2031 2032 2033
Federally regulated private sector 40,013,738 7,774,083 7,334,950 6,920,622 6,529,698 6,160,857 5,812,851 5,484,504 5,174,703 4,882,403
Federal public service 9,727,264 3,842,577 3,625,515 3,420,714 3,227,482 3,045,166 2,873,148 2,710,848 2,557,716 2,413,234
Sensitivity analysis

Some employees may continue to use their own tampons and menstrual pads despite being able to obtain menstrual products from their employers at zero cost in the regulatory scenario. While the central case presented above includes an uptake rate of 100%, the following table presents the key analytical results that correspond to three other uptake rates.

Table 5: Uptake rates and estimated regulatory impacts
Uptake rate Total costs, PV Total benefits, PV Net impact, PV Net impact, annualized
25% $63,360,169 $21,049,151 –$42,311,018 –$6,024,137
50% $86,750,803 $42,098,303 –$44,652,500 –$6,357,511
75% $110,141,438 $63,147,454 –$46,993,983 –$6,690,886
100% $133,532,072 $84,196,606 –$49,335,466 –$7,024,260

Based on the methodology used in this analysis, the higher costs associated with greater uptake are largely offset by additional employee cost savings. The difference does not cancel out entirely due to the costs associated with paying staff to replenish the stock of menstrual products in toilet rooms. The total net present value therefore changes slightly depending on the choice of this parameter.

Small business lens

In the federally regulated private sector, the majority of private sector employers are small businesses, but most employees work for medium and large businesses. These features of the federal jurisdiction imply that costs linked to employee counts, such as the cost to employers to purchase menstrual products, yield a relatively greater impact on medium and large businesses than on small businesses. Furthermore, although one of the most significant cost items from the cost-benefit statement summary is the purchase of menstrual product dispensers, small business employers are not expected to purchase these dispensers in the regulatory scenario given that this will not be a regulatory requirement. For these reasons, medium and large business employers will bear the majority of costs associated with the Regulations.

The flexibility for employers to provide menstrual products in other locations (in the same workplace) under their control than in toilet rooms could limit negative impacts on small businesses who may have operational or workplace-specific circumstances impeding their ability to provide these products in every toilet room.

The following table presents the itemized breakdown of costs for small businesses.

Table 6: Monetized costs
Description of cost Annualized value Present value
Purchase of tampons and menstrual pads $333,389 $2,341,586
Purchase of covered containers $170,982 $1,200,906
Install covered containers $32,108 $225,513
Replenish the stock of tampons and menstrual pads in toilet rooms $37,086 $260,475
Total compliance costs $573,565 $4,028,480

One-for-one rule

The one-for-one rule does not apply, as there will be no incremental change in administrative burden on businesses.

Regulatory cooperation and alignment

The Regulations only apply to federally regulated workplaces, so there are no regulatory cooperation implications.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required, as there are no broader environmental impacts.

Gender-based analysis plus

Issue identification

A gender-based analysis plus (GBA+) assessment was conducted as part of the development of the amendments to Part 4 of the AOHSR, Part IX of the COHSR, Part 4 of the MOHSR, Part X of the OGOSHR and Part VI of the OTOHSR.

Requiring federally regulated employers to provide menstrual products in the workplace will positively impact employees who menstruate, including cisgenderfootnote 15 women, non-binaryfootnote 16 individuals, transgenderfootnote 17 men and intersex people.footnote 18 It is expected that cisgender men will not be affected by the amendments, as they do not menstruate. Below, a variety of impacts are discussed and analyzed based on diverse attributes of workers including gender/gender identity, socioeconomic considerations, geography, culture and religion, indigeneity, and age, as well as other considerations such as language and education.

Gender/gender identity

The Government of Canada defines sex as biological characteristics,footnote 19 such as male, female or intersex and defines gender as a social identity, such as man, woman, non-binary or two-spirit.footnote 20 Sex and gender are not interchangeable terms and because of this, it should be recognized that employees access toilet rooms based on their gender expression, not biological sex. This will ensure that transgender, gender non-binary and intersex individuals feel safe to use the toilet room that best reflects their gender. Therefore, in the context of requiring federally regulated employers to provide menstrual products in workplaces, the amendments will have a positive impact, as menstrual products will be provided in all toilet rooms under their control, or when not feasible, in another accessible location in the same workplace also controlled by them, offering a reasonable amount of privacy.

Menstruation is a known burden for cisgender women, non-binary individuals, transgender men and intersex individuals, as they are required to manage their distress in addition to managing their menstrual period at their own expense. Conversations about menstruation are typically heavily gendered and it is assumed that those who menstruate identify as women and have typically “female” experiences of their menstrual periods.footnote 21 A lack of access to menstrual products in men’s toilet rooms has raised concerns regarding washroom equity for transgender men and non-binary individuals.footnote 22 Furthermore, an added challenge is that a private toilet room is required for the individual to take care of their menstrual period when it comes unexpectedly. Since men’s toilet rooms are often not equipped with menstrual product receptacles, this poses an added challenge. Therefore, in order to ensure inequality does not exist within this group, it is necessary to provide menstrual products as well as a covered container for disposal in the men’s toilet compartments as well. This will ensure that the unique needs of non-binary individuals, transgender men, and intersex people are also addressed.

Socioeconomic considerations
Employee income

An employee’s income is an important factor that influences their access to menstrual products. A substantive study completed by Plan Canada in 2018 provided baseline information about menstruation and menstrual health in Canada. The study found that between 23% and 25% of individuals who menstruate, and one third of Canadian women under the age of 25, struggled to afford menstrual products due to economic constraints.footnote 23 Within the federal jurisdiction, 5% of female employees are under the age of 25.footnote 24 According to the study, just over 40% of respondents whose annual household income was between $40,000 to $59,999 struggled to purchase menstrual products for themselves.footnote 25 According to the Employment Equity Act 2020 Annual Report, 29% of women earned less than $50,000 per year in federally regulated workplaces.footnote 26 Therefore, there is a risk that menstruating employees in federally regulated workplaces who earn lower incomes face economic constraints that may prevent them from accessing adequate menstrual products. Providing menstrual products in federally regulated washrooms will help mitigate this risk and increase access to menstrual products for employees who earn lower incomes.

Geography

In addition to financial barriers, employees in federally regulated workplaces may encounter challenges in accessing menstrual products due to their geographic location. It is estimated that Canadians who menstruate typically spend up to $6,000 in their lifetime on menstrual hygiene products.footnote 27 Those who live in more remote, rural and northern communities can expect to pay double the price for the same products found in larger urban communities. There is a clear accessibility divide between larger urban centres and smaller communities. Therefore, the amendments will have a positive impact on those employees who work in remote, rural, and northern locations.

Culture and religion

While employees in federally regulated workplaces hold a range of religious and cultural beliefs, the amendments are not expected to impact workers differently based on religion or culture. The significance of menstruation varies among different cultural and religious groups. In some cultures and religions, there is a traditional taboo surrounding the use of tampons, for example, including the belief that tampons are detrimental to women’s health.footnote 28 Furthermore, there are concerns that tampons are painful and fears that it will break the hymen, which is still believed to be the ultimate symbol of virginity in some cultures.footnote 29 Employers will be required to provide both tampons and menstrual pads at a minimum, empowering and providing agency to employees of diverse religious and cultural beliefs to use the form of protection they feel comfortable using.

Indigenous workers

The availability of menstrual products will have a positive impact on Indigenous workers, particularly those who work in remote areas where there is typically less access to menstrual products. For example, individuals who work outside of the city may have more difficulty accessing products, especially when their menstrual period starts without that employee having menstrual products on hand.

In addition, according to the Employment Equity Act 2020 Annual Report, 34.4% of Aboriginalfootnote 30 women who work in federally regulated workplaces earned less than $50,000 per year.footnote 26 Therefore, requiring federally regulated employers to provide menstrual products will have a positive impact on Aboriginal workers who menstruate and who earn lower incomes.

Age

For Canadians, menstruation typically begins between the ages of 11 and 14footnote 31 and ends around menopause that is most often experienced between the ages of 45 and 55, averaging around age 51.footnote 32 Considering the average age for menopausal transition, the Labour Program conducted an analysis based on data available and approximately 35% of employees in the federal jurisdiction are women under 52 years of age, including in the private sector, the federal public service, and Indigenous governments. It is anticipated that requiring federally regulated employers to provide menstrual products in the workplace will positively benefit employees in this age range who menstruate.

Other considerations
Language

There is no available data that supports differential outcomes for employees based on the language they speak at work.

Education

There is no available data that supports differential outcomes for employees based on their education. Education is linked to socioeconomic considerations that are covered in the previous section.

Summary

By requiring that menstrual products be accessible to all employees regardless of gender, it is anticipated that the amendments will positively impact employees who menstruate, including cisgender women, non-binary individuals, transgender men and intersex people. This also supports the Government’s commitment to gender equity. It is important to highlight the intersectionality of the many diverse attributes of employees who menstruate. For example, how an individual manages their period is influenced by identity, socioeconomic status, culture and personal preference.

The amendments are expected to have a notable positive impact on employees who face socioeconomic constraints. Employees who menstruate and experience financial barriers to purchasing menstrual products have reported missing work due to lack of products. Ensuring products are accessible to all employees may address gender and socioeconomic discrimination in the workplace.

Implementation, compliance and enforcement, and service standards

Implementation

Based on stakeholder feedback, the amendments will now come into force on December 15, 2023. The Labour Program is committed to providing guidance material to help employers comply with the Regulations and ensure clear interpretation.

Compliance and enforcement

Compliance with the amendments will be achieved using a variety of existing approaches along a compliance continuum. This may include seeking an assurance of voluntary compliance. Directions may also be issued in cases where the employer is unwilling to provide an assurance of voluntary compliance. To address more serious or repeated violations, an AMP under Part IV of the Code may be issued.

Designated occupational health and safety violations are listed and classified under Schedule 1 of the AMPs Regulations. When amendments are made to Part II of the Code or its associated regulations, Schedule 1 of the AMPs Regulations must also be amended to reflect any updates to obligations or provisions.

The AMPs Regulations specify the method used to determine the amount of an AMP in a given situation when issuing the notice of violation. The baseline penalty amount applicable to a violation varies depending on the type of person or department believed to have committed a violation and the classification of the violation.footnote 33 Each designated violation is classified as either Type A, B, C, D or E, in order of increasing severity, according to the level of risk and/or the impact and significance of the violation, as outlined in Table 7.

If an employee believes there is a contravention of the Code at their workplace, the employee may make a complaint to their employer/supervisor who must work to address the employee’s concerns. Complaints can be made under Part II of the Code to a health and safety officer at the Labour Program only if the internal complaint resolution process has been followed and has not been successful in resolving the matter. For more information, please see the Internal complaint resolution process on the Canada.ca website.

Table 7: Classification method for violations under the Code

TYPE

PART II

A

Related to administrative and technical provisions.

B

Related to low-risk hazards that may result in a minor injury or illness that requires medical treatment, but that do not result in disabling injuries.

C

Related to medium-risk hazards that may result in a serious injury or illness that prevents an employee from effectively performing their regular work duties.

D

Related to high-risk hazards that may result in serious injury or fatality.

E

Involves immediate life-threatening hazards or hazards known to cause latent occupational disease. These hazards give the employee little to no opportunity to avoid or minimize severe injury or death or occupational disease.

Contact

Duncan Shaw
Senior Director
Workplace Directorate
Labour Program
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor
Gatineau, Quebec
J8X 3X2
Email: EDSC.LAB.SST.POLITIQUES-LAB.OHS.POLICY.ESDC@hrsdc-rhdcc.gc.ca