Canada Gazette, Part I, Volume 156, Number 42: Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products)

October 15, 2022

Statutory authority
Canada Labour Code

Sponsoring departments
Department of Employment and Social Development
Department of Indigenous Services
Department of Natural Resources
Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

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 proposing amendments to the OHS Regulations, the Government of Canada would be 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 proposal.

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 Columbia^{footnote 1} and Nova Scotia^{footnote 2} 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 3}

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 4} Health Canada is responsible to ensure 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 proposed 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 would also advance the Minister of Labour’s 2021 mandate commitment. In addition, this initiative would support the Government’s broader gender-based analysis plus (GBA+) initiatives:

• To build a more inclusive Canada;
• To address systemic inequities, such as gender-based discrimination, discrimination against 2SLGBTQI+ communities and inequities faced by all vulnerable populations; and
• To continue to stand up for fairness and equality.

Description

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

• Part 4 of the Aviation Occupational Health and Safety Regulations (AOHSR);
• Part IX of the Canada Occupational Health and Safety Regulations (COHSR);
• Part 4 of the Maritime Occupational Health and Safety Regulations (MOHSR);
• Part X of the Oil and Gas Occupational Safety and Health Regulations (OGOSHR); and
• Part VI of the On Board Trains Occupational Health and Safety Regulations (OTOHSR).

The proposed Regulations would 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 would 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 in order to comply with this regulation; 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 5} if it is not feasible to provide the menstrual products in each toilet room, employers would also have the flexibility to provide the menstrual products in another location in the 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 proposed Regulations would also ensure that a covered container for the disposal of menstrual products are provided in each toilet compartment.

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

• psychological health risks, such as anxiety and stress caused by stigma around menstruation; and
• the prevalence of missed work due to a lack of access to menstrual products.

To ensure these requirements are enforceable through administrative monetary penalties (AMPs), consequential amendments would 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 Part II and III of the Code and associated Regulations made under each of these Parts. Only designated violations can be subject to an AMP.

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.

Regulatory development

Consultation

Notice of intent

In May 2019, the Labour Program published an 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:

• 29 were from individuals and 13 from organizations, including 5 labour organizations, 1 employer group, 6 employers and 1 non-profit organization;
• 57% supported the proposal, 41% were against the proposal, and 2% were neutral; and
• Out of the 6 employers who provided feedback, only 2 of them were federally regulated employers.

Additional feedback focused on the following issues:

• Accessibility to products in different workplaces (remote locations, truck stops, airplanes);
• Location of product delivery in the workplace (in washrooms, compartments [stalls], hallways);
• Privacy for gender diverse employees accessing products;
• Cost for employers;
• Delivery method of products (dispensers, baskets); and
• Environmentally friendly options.

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:

• United Way (Period Promise campaign)
• Period Packs
• The Period Purse
• Monthly Dignity
• City of Hamilton – Children’s Services and Neighbourhood Development
• Professors from Douglas College and Concordia University
• Canadian Women’s Foundation
• Fédération des femmes du Québec

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 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 were also invited to attend. 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:

• British Columbia Maritime Employers Association
• Canadian Labour Congress
• Canadian Union of Public Employees
• Federally Regulated Employers — Transportation and Communications
• International Longshore and Warehouse Union
• Public Service Alliance of Canada
• Unifor
• Treasury Board Secretariat
• Native Women’s Association of Canada
• Women of the Métis Nation

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:

• Use of toilet compartments (stalls)
• Flexibility of regulations
• Issue with existing sanitation regulations
• Implementation
• Costs

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 workplaces^{footnote 6} 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 will inform the proposed Regulations to provide menstrual products while preserving occupational health and safety in federally regulated workplaces.

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

Modern treaty obligations and Indigenous engagement and consultation

The Labour Program conducted the assessment of modern treaty implications and found that the proposed amendments would not disproportionately impact modern treaty holders. Depending on specific activities within modern treaty areas, the proposed 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 will have the opportunity to inform the proposed Regulations through an upcoming engagement expected during the public comment period following publication in the Canada Gazette, Part I. Any engagement will be supported through dialogue with key Indigenous partners that is culturally sensitive and respectful given the spiritual significance of the menstrual cycle for many First Nations, Inuit, and Métis communities.

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.

Currently, there are no requirements in place that require employers to provide menstrual products in federally regulated workplaces. Amending the existing provisions in the OHS Regulations would be 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 current intent of this proposal, 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

Benefits and costs

The present value of total costs due to this regulatory proposal would be an estimated $116.6 million over the 2024–2033 period. These costs would 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 proposed Regulations would not require employers to purchase and install menstrual product dispensers, it is expected that large business employers would choose to install these dispensers in order to maintain the products in a sanitary condition. Employers would also assume labour costs to pay their maintenance staff to install the dispensers and covered containers, and they would pay their custodial staff to replenish the stock of menstrual products as employees use them. Monetized benefits would arise due to the reduced expenditure on menstrual products for menstruating employees. With monetized benefits of $73.5 million, the proposed Regulations would yield a net cost of approximately $43.1 million over the 10-year analytical period. The proposal would 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 2022 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 7} The baseline scenario depicts what is likely to happen in the future if the proposed Regulations are not made by the Government of Canada, whereas the regulatory scenario provides information on the intended outcomes of the regulatory proposal.

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 proposed 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 would 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 would be required to provide menstrual products to their employees in the regulatory scenario. Although the proposed Regulations would not require employers to purchase and install menstrual product dispensers, it is expected that large business employers would 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 proposed Regulations would also require one covered container for the disposal of menstrual products to be installed in every toilet compartment, in women’s, men’s, and gender-neutral toilet rooms. Therefore, these covered containers would be added to all toilet compartments (stalls) in men’s toilet rooms across the federal jurisdiction as a result of the proposed Regulations.

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

Costs

Costs to employers to purchase tampons and menstrual pads

Employers would bear additional operating costs to supply tampons and menstrual pads in their toilet rooms, or if not feasible, in another location in the 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 would 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 would 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 would 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 or paternity 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 $73.5 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 $30.9 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 $3.1 million.

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

The menstrual product dispensers and covered containers described above would need to be installed. This installation would 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 would 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 $1.0 million.

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

The analysis assumes that employers would 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 $8.2 million.

Government costs for compliance promotion and enforcement

There will be additional costs to Government associated with compliance monitoring and enforcement; however, these activities would 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 proposed Regulations may face additional penalties due to the consequential amendments to the AMPs Regulations. This potential impact would 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 would 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. However, it is likely to be small.

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:

• 79% used an improvised solution (e.g. toilet paper)
• 53% asked another woman for supplies
• 62% went to a store immediately to buy supplies
• 48% obtained supplies from a dispenser in a public restroom
• 34% went home immediately to get supplies^{footnote 8}

In the regulatory scenario, employees would be able to access menstrual products directly in the toilet room when they are needed. For those who would have left the workplace to obtain menstrual products in the baseline scenario, this would result in avoided absenteeism and increased productivity; however, no data is available that would permit the quantification or monetization of this benefit. The benefit is likely to be small.

Reduced menstrual product expenditures (benefit to employees)

The provision of menstrual products in federal jurisdiction workplaces would yield a benefit to menstruating employees in terms of cost savings on menstrual products that they would otherwise have to purchase. The present value of this benefit over the 10-year analytical period is estimated to be approximately $73.5 million.

Cost-benefit statement

• Number of years: 10 (2024–2033)
• Base year for costing: 2021
• Present value base year: 2022
• Discount rate: 7%

Table 1: Monetized costs

Impacted stakeholder	Description of cost	2024	2025–2032	2033	Total (present value)	Annualized value
Employers	Purchase tampons and menstrual pads	$9,421,449	$58,536,248	$5,582,880	$73,540,576	$10,470,524
	Purchase menstrual product dispensers	$29,144,677	$1,563,407	$149,056	$30,857,140	$4,393,363
	Purchase covered containers	$2,924,448	$154,662	$14,726	$3,093,836	$440,493
	Install menstrual product dispensers and covered containers	$907,112	$48,255	$4,597	$959,963	$136,677
	Replenish stock of menstrual products in toilet rooms	$1,048,031	$6,511,503	$621,033	$8,180,567	$1,164,729
All stakeholders	Total costs	$43,445,717	$66,814,074	$6,372,292	$116,632,083	$16,605,785

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	$9,421,449	$58,536,248	$5,582,880	$73,540,576	$10,470,524

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	$43,445,717	$66,814,074	$6,372,292	$116,632,083	$16,605,785
Total benefits	$9,421,449	$58,536,248	$5,582,880	$73,540,576	$10,470,524
NET IMPACT	−$34,024,268	−$8,277,827	−$789,412	−$43,091,507	−$6,135,261

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

Qualitative impacts

Positive impacts

• Benefit to employees due to a reduction in anxiety and embarrassment in cases where they would otherwise not have access to menstrual products when needed.
• Benefit to employers due to reduced absenteeism and increased productivity.

Distributional analysis

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

• Number of years: 10 (2024–2033)
• Base year for costing: 2021
• Present value base year: 2022
• Discount rate: 7%

Table 4: Monetized costs

Industry	2024	2025–2032	2033	Total (present value)	Annualized value
Core public administration	$6,244,123	$17,052,931	$1,626,388	$24,923,442	$3,548,537
Agencies	$1,787,474	$4,710,923	$449,294	$6,947,691	$989,195
Other FPS	$464,572	$336,910	$32,129	$833,611	$118,687
Air transportation	$2,875,567	$2,896,361	$276,182	$6,048,111	$861,115
Rail transportation	$2,357,054	$6,842,868	$652,864	$9,852,786	$1,402,815
Maritime transportation	$1,902,600	$699,352	$66,685	$2,668,636	$379,954
Road transportation	$3,730,985	$4,577,982	$436,598	$8,745,565	$1,245,172
Postal and pipelines	$8,258,078	$6,405,875	$610,896	$15,274,849	$2,174,795
Banks	$11,107,809	$12,731,174	$1,214,153	$25,053,137	$3,567,003
Feed, flour, seed and grain	$698,618	$750,374	$71,562	$1,520,554	$216,493
Telecommunications and broadcasting	$3,352,394	$6,927,546	$660,693	$10,940,633	$1,557,700
Other FRPS	$666,443	$2,881,777	$274,847	$3,823,067	$544,319
Total costs	$43,445,717	$66,814,074	$6,372,292	$116,632,083	$16,605,785

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 would be highest in the first year of implementation, since this is the year in which the majority of upfront costs would 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

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

	2024	2025	2026	2027	2028	2029	2030	2031	2032	2033	Total
Federally regulated private sector	$34.9	$6.8	$6.4	$6.0	$5.7	$5.4	$5.1	$4.8	$4.5	$4.3	$83.9
Federal public service	$8.5	$3.4	$3.2	$3.0	$2.8	$2.7	$2.5	$2.4	$2.2	$2.1	$32.7

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%	$55,341,225	$18,385,144	−$36,956,081	−$5,261,715
50%	$75,771,511	$36,770,288	−$39,001,223	−$5,552,897
75%	$96,201,797	$55,155,432	−$41,046,365	−$5,844,079
100%	$116,632,083	$73,540,576	−$43,091,507	−$6,135,261

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 would not be a regulatory requirement. For these reasons, medium and large business employers would bear the majority of costs associated with the proposed Regulations.

The flexibility for employers to provide menstrual products in other locations 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.

• Number of years: 10 (2024–2033)
• Base year for costing: 2021
• Present value base year: 2022
• Discount rate: 7%

Table 6: Monetized costs

Description of cost	Annualized value	Present value
Purchase tampons and menstrual pads	$291,195	$2,045,232
Purchase covered containers	$149,342	$1,048,918
Install covered containers	$28,044	$196,972
Replenish the stock of tampons and menstrual pads in toilet rooms	$32,392	$227,509
Total compliance costs	$500,974	$3,518,631

One-for-one rule

The one-for-one rule does not apply as there would be no incremental change in administrative burden on business.

Regulatory cooperation and alignment

This proposal only applies 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 assessment was conducted as part of the development of the proposed 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 would positively impact employees who menstruate, including cisgender^{footnote 9} women, non-binary^{footnote 10} individuals, transgender^{footnote 11} men and intersex people.^{footnote 12} It is expected that cisgender men would not be affected by the proposed 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 13} such as male, female or intersex and defines gender as a social identity, such as man, woman, non-binary or two-spirit.^{footnote 14} 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 proposed 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 offering a reasonable amount of privacy in the workplace also controlled by them.

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 15} 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 16} 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 17} Within the federal jurisdiction, 5% of female employees are under the age of 25.^{footnote 18} 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 19} According to the Employment Equity Act 2020 Annual Report, 29% of women earned less than $50,000 per year in federally regulated workplaces.^{footnote 20} 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 21} 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 rural communities. Therefore, the proposed amendments would have a positive impact on those employees who work in remote locations.

Culture and religion

While employees in federally regulated workplaces hold a range of religious and cultural beliefs, the proposed 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 22} 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 23} 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 would 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 Aboriginal^{footnote 24} women who work in federally regulated workplaces earned less than $50,000 per year.^{footnote 20} Therefore, requiring federally regulated employers to provide menstrual products would 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 14^{footnote 25} and ends around menopause that is most often experienced between the ages of 45 and 55, averaging around age 51.^{footnote 26} 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 would 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 proposed amendments would 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 proposed 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

The amendments would come into force six months following the day on which they are registered. The Labour Program is committed to providing guidance material to help employers comply with the proposed Regulations and ensure clear interpretation.

Compliance and enforcement

Compliance with the proposed amendments would 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 administrative monetary penalty 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 administrative monetary penalty 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 27} 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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Regulations Amending Certain Regulations Made Under the Canada Labour Code (Menstrual Products) under sections 125^{footnote a}, 157^{footnote b} and 270^{footnote c} of the Canada Labour Code ^{footnote d}.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Duncan Shaw, Senior Director, Occupational Health and Safety, Labour Program, 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).

Ottawa, October 5, 2022

Wendy Nixon
Assistant Clerk of the Privy Council

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 28} 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 the menstrual products in a toilet room, the employer shall provide those products in another location in the workplace controlled by the employer that is 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

• (a) if there is only one toilet in a toilet room, in that toilet room; and
• (b) in each toilet compartment.

On Board Trains Occupational Health and Safety Regulations

2 Subsection 6.15(4) of the On Board Trains Occupational Health and Safety Regulations ^{footnote 29} is replaced by the following:

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

• (a) menstrual products, including clean and hygienic tampons and menstrual pads; and
• (b) a covered container or bag that is impervious to moisture, for the disposal of menstrual products.

(5) If it is not feasible to provide the menstrual products in a toilet room, the employer shall provide those items in another location in the workplace controlled by the employer that is 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 30} 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 the menstrual products in a toilet room, the employer shall provide those products in another location in the workplace controlled by the employer that is 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

• (a) if there is only one toilet in a toilet room, in that toilet room; and
• (b) in each toilet compartment.

Maritime Occupational Health and Safety Regulations

4 (1) Section 70 of the Maritime Occupational Health and Safety Regulations ^{footnote 31} is amended by striking out “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:

• (e) menstrual products, including clean and hygienic tampons and menstrual pads; and
• (f) a covered container lined with a plastic bag for the disposal of menstrual products.

(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 the menstrual products in a sanitary facility, the employer must provide those products in another location in the workplace controlled by the employer that is 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 32} is replaced by the following:

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

• (a) menstrual products, including clean and hygienic tampons and menstrual pads; and
• (b) a covered container for the disposal of menstrual products.

(2) If it is not feasible to provide the menstrual products in a washroom, an employer shall provide these items in another location in the workplace controlled by the employer that is 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 33} 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

9 Division 4 of Part 2 of Schedule 1 to the Regulations is amended by adding the following in numerical order:

Item	Column 1 Provision	Column 2 Violation Type
222.1	70(1)(f)	B
222.2	70(2)	C

10 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

11 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

12 These Regulations come into force on the day that, in the sixth month after the month in which they are registered, has the same calendar number as the day on which they are registered or, if that sixth month has no day with that number, the last day of that sixth month.

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