Recently, a supplementary query by a member of parliament on the Government’s plan and progress of granting paid leaves to Women during Menstruation raised a spark in Rajya Sabha. The Union and Child Development minister specifically intervened and raised the point of granting paid leaves to menstruating women being seen as a handicap and not a natural process.[1] The bill in discussion is The Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022 which provides for a three-day paid leave for working women and transwomen during the period of menstruation. It also benefits female students by granting them attendance for 3 days per month during their menstrual period. Along with this, the bill envisages setting up a ‘Female Menstrual Health Products Price Regulation Authority’ which will look after the availability, affordability, and distribution of menstrual health products and raise awareness among the community towards menstrual hygiene and related issues.[2]
While the latter part of the bill that focuses on the accessibility and distribution of period products aiming at reducing period poverty and overpricing of period products which is one of the most common needs of women and a big part of their lives for about 50 years especially targeting women living in poverty has received and unequivocal support the former part granting paid leave has been a contention for quite a long time now.
History and evolution of granting paid period leaves:
The history of granting leaves to menstruating women traces back to almost a century ago when the then-Soviet Union started granting leaves to menstruating Women labourers in an attempt to protect their menstrual health and hygiene. This practice was followed by Japan granting such leaves after the Japanese labour demands cited damage to women’s capacity to bear children due to the long working hours and sub-par hygiene affecting their reproductive health.[3] This practice of providing relief to female manual labourers slowly transformed into providing paid menstrual leave in various countries all over the world including Spain, Taiwan, Philippines, Indonesia, Vietnam, Zambia, etc.
Global Perspective and Approaches:
Now even though our work has become less and less manual and unskilled requiring less physical labour or long hours then why does this need for menstrual leave continue? What is the rationale behind such leaves?
This need for having a day off on the “difficult days” stems from the discomfort women face during the menstruating period which may range from a minor headache, abdominal pain or cramps, and restlessness to something called ‘Dysmenorrhea’ commonly known as painful periods in which the women suffers through severe cramps, nausea, dizziness, and even diarrhoea among other acute discomforts which virtually renders them on bed-rest.[4] It is also mentioned in “The Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022” that “According to research, approximately 40 percent of girls miss school during their periods and around 65% have said it to be affecting their daily activities.”[5] In this era where everything is so technical and cutthroat needing utmost productivity, these women miss various opportunities due to being “sick” on such days.
While various countries have instilled paid menstrual leave policies in their respective laws, there are various perspectives on the issue providing different approaches to tackling this issue of Women missing opportunities and work due to painful menstruation and related discomforts. For instance, in the U.S. a survey of around 600 people indicated that nearly 50% of the respondents believed that the result of providing such leave would be more detrimental than helping women. There were also contentions of such laws being discriminative against women who don’t have periods due to some biological reasons and transwomen. On the other hand, Spain became the first country in Europe to incorporate a three-day paid menstrual leave for women which was labelled as “a historic day of progress for feminist rights” by their Equality Minister Irene Montero. In 2016 Italy tried to propose a bill providing a three-day menstrual leave to workers who could attain a medical certificate but was not able to go ahead before the government term ended in 2018. The northwestern Pacific Country Taiwan amended the ‘Gender Equality in Employment Act’ in 2002 adding Article 14 which allowed women to apply for menstrual leave.[6] In Zambia there exists a policy called “Mother’s Day” in which women are granted one menstrual leave per month stressing upon the fact that every woman is a potential mother,[7] even though talking about periods is considered a taboo and one can be fired if you are found doing any other activity after taking such leave, quoting the Zambian labour minister in her BBC interview, “If you absent yourself yet you are found in a disco house, then it will not be taken as Mother’s Day”.[8]
Apart from these in countries where no such law exists, various private companies have started providing an optional leave to women on their menstruating days. Like in the United Kingdom, ‘Coexist’ is a business that provides an option for 1-day leave for menstruating women and also has inbuilt ‘well-being rooms’ in their offices where everyone irrespective of menstruating or not can take some time off to focus on their health and wellness during their working hours.[9] A few companies rather than providing leaves allow women to work from the comfort of their homes during the period of menstruation thus not completely affecting their progress at work and allowing them to rest at the same time.
National Perspective and Efforts:
India, home to around 355 million menstruating girls and women has recently become a hotspot for the menstrual leave debate but this attempt to incorporate period leaves in its legislation is not a new phenomenon. There have been three previous attempts to table a bill that would provide women with such leaves. The first attempt was made in 2017 when Ninog Ering a Member of Parliament at Lok Sabha introduced the Menstruation Benefit Bill,2017[10] which advocated for a 4-day leave for women during their periods. Another attempt was made in 2018 by Shashi Tharoor in the form of a bill called Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018[11] which also had a provision for providing sanitary napkins to women in their workplace authorities. Subsequently, in 2019 another private bill was tabled by Mr. M S Jothimani as the Right to Menstrual Hygiene and Paid Leave Bill, 2019[12] advocating a right to paid leave for women in their menstruating days.
In the absence of any particular laws many private companies like Swiggy, Zomato, Byjus, etc, have started providing paid period leaves for their menstruating employees ranging from around 12 to 24 days leave each year which provides around 1-2 days leave each month during their period.[13] This policy of leaves is often accompanied by a ‘no question asked’ policy which protects women’s privacy to an extent along with saving them from any embarrassment that may occur. The women employees of other companies that do not provide such leaves often take medical leaves in case of dysmenorrhea.
Legal analysis and pros-cons:
While government and companies continue to debate the issues, some believing it to be a part of breaking taboos and empowering women, others are concerned about the ill effects it may have on equality in the workplace and social spheres. Along with this, it is also very important to evaluate the effect of any such bill passed on the existing rules and regulations concerning, consent, privacy, and anti-discrimination. Added to that such laws may also affect employer’s preferences and behaviour.
One of the most prominent woman entrepreneurs and the Co-founder of the beauty brand Mama Earth voiced her opinion on the bill stating that any such law would make women prone to discrimination while recruiting because of the 12-24 fewer working days for women for the same pay as that of a male or non-menstruating employee with no such leaves.
This would automatically make women a less preferable recruit to employees who would have to pay the same salary for comparatively less work. To overcome this issue, she has suggested women employees be given an option to work from home when facing difficult periods.[14] Similar concerns regarding treating menstruation which is a natural biological process that women go through as a Handicap was also raised in Lok Sabha by Union Minister Smriti Irani.
The government has recently drafted a “NATIONAL MENSTRUAL HYGIENE POLICY, 2023” in collaboration and consultation with all the stakeholders with a vision to “All women, girls, and persons who menstruate are able to experience menstruation in a manner that is safe, healthy and free from stigma”.[15] Although the draft provides and aims for an elaborate attempt to reduce period poverty and menstrual hygiene issues it nowhere talks about providing leaves to the working-menstruating women and transwomen.
Even though if any such law comes to place it will always be passed keeping the best of the interests in mind but for a successful implementation and for it to be a boon for women rather than a devil in disguise which would undo centuries of efforts towards empowerment and equality, it is necessary these laws must be drafted without any such loopholes and keeping and imbibing the solutions to various issues which may come to on implementation of such law.
- Imbibing Non-Discrimination Clause– Article 14 of our constitution protects against any discrimination based on sex, caste, religion, place of birth, etc.[16]
One of the major concerns while implementing any such law would be to ensure that such a policy does not discriminate against women. As pointed out earlier such laws could have a great effect on employers’ preferences. It should also be noted that any such law would also tend to discriminate against women who don’t have periods and transwomen. It is imperative that the bill should contain an anti-discrimination clause to prevent any such negative behaviour towards the menstruating employee.
- Concerns regarding Privacy and Consent – Article 21 of the constitution deals with the Right to Privacy.[17] It is pertinent to note that such a leave policy may violate women’s Privacy as availing of such leaves would be a virtual announcement of her menstrual cycle which she may not be comfortable with. It is important to respect the privacy of the individual and prevent ‘outing’ i.e., the disclosure of one’s menstrual status without the menstruator’s consent. Whenever an employee decides to take such leave, it is obvious that at least her supervisor will know that they are menstruating which may lead to objectification, discrimination, and sexism implicitly if not explicitly.
This issue of privacy will also arise during documentation and approval of leaves even during pay days when every leave taken would be segregated as paid and not paid etc for remuneration purposes.
For this, the bill needs to look into various niches of getting leave in all these corporate houses and other places so as to prevent “outings” and protect the menstruator’s right to privacy.
- Compliance with existing medical leave laws- There already exists a policy for availing medical leaves in every government and private institution and company. A menstrual leave policy may require proper compliance with the existing medical leave laws. Most of the medical leave policies in India are set under the Shops and Establishment Act of various states, for example the Delhi Shops and Establishments Act, which provides for a minimum of 0.5 to 7 days of paid medical leave.[18]
Menstrual leave should not be counted under medical leave as (1) Women menstruate 12 months a year which requires a minimum of 12 days leave possibility which is not present in the above Act and (2) Exhausting these medical leaves during menstruation may lead to crisis for women if and when they would have a medical emergency.
Proper deliberations must be done while forming a menstrual leave policy without which such a policy would act as a double-edged sword that may not work for the best
- Other Concerns:
In addition to the vital concerns listed above, various intricate and important issues need to be dealt with to remove ambiguity which may become an impediment to the intended benefactor of the law.
Coverage and Eligibility- It is necessary to define the eligibility criteria for menstrual leaves. For instance, Will every menstruating person get a leave, or will it be provided to only those who suffer from severe cramps and dysmenorrhea? And would providing such leave to anyone who does not have painful periods be discriminatory to other employees?
Impact on work-productivity- While health before wealth is a very wise and well-known proverb, we must recognise the current world’s cutthroat competition and arbitrariness. Providing menstrual leaves will cut down on working hours and affect the work productivity of the employees regularly. This will again make non-menstruating employees more preferable than their counterparts.
The bill should also contain a compensating clause devised to allow anyone availing such leaves ways to compensate for their work during the days they are fit along with a strict non-discriminatory clause during hiring and every other period of employment.
Anti-Retaliation – Even now, in the 21st century where a large majority recognise periods as a normal human condition and are sensitised towards it, there still exists severe stigma and ignorance towards the subject. India has no curriculum for sex education in schools and people for a long time have shied away and are wrongly informed about it.
For women to be the benefactor of such leaves and not the victim it is very important to include provisions to protect menstruating employees from retaliation. For this, it is important for everyone in the workplace to foster a workplace culture that supports people in taking such leaves. This can be done by organising compulsory seminars and campaigns to further sensitise the people towards the subject.
Additionally, a periodic review of the success of any such law is very important as it deals with a very intricate and non-avoidable factor in people’s lives. Rapid reviews and revisions need to be made from time to time so that they deliver the intended results.
Conclusion:
The menstrual leave policy is a step towards a lot of objectives but it can only prove to be fruitful when it is deeply analysed and curated in a way that ensures no discrimination, retaliation, and privacy concerns to each of the stakeholders concerned. Born in a country that celebrates menstruation and menstruating women in almost every culture that exists in this huge diversity be it the festival of Raja Prabha in Odisha, Manjal Neerattu Vizha in Tamil Nadu, or Rittushudhi in Karnataka or the worship of Maa Kamakhya who is believed to be menstruating.
The rationale behind such policy is to recognise and address the difficulty some women face during their periods ranging to even serious discomfort which affect their work and health at the same time.
It is true that menstruation is a very natural process that every woman goes through and should not be treated as a handicap but it is also true that there is a rise in dysmenorrhea amongst young women and girls at the present. Crafting a policy that respects privacy, outlines a clear procedure for leave approval, incorporates anti-retaliation measures and most importantly does not discriminate against women for availing such leaves when needed will be a definite step towards providing relief to every such menstruator who faces severe discomfort and would also promote a supportive and equitable work environment. Compliance with existing employment laws and leave regulations is equally important.
With India celebrating Menstrual Hygiene Day for the 10th time in 2024 on May 28th with an aim to make menstruation a normal fact of life by 2030 we have come a long way in breaking taboos and stigmas towards menstruation and raising awareness towards menstrual hygiene but we still have a long way to go. It is imperative that in this process we tread carefully while making any such law because they have a strong potential to overturn everything women have stood and fought for and continue to stand for may it be equality, discrimination, or empowerment.
[1] Vidharti Rao, Row over paid leave for menstruation: How Parliament took up the issue over the years, The Indian Express (December 20, 2023), https://indianexpress.com/article/political-pulse/paid-leave-menstruation-parliament-smriti-irani-9073902.
[2] The Right of Women to Menstrual Leave and Free Access to Menstrual Health Products Bill, 2022, 276 of 2022.
[3] Ashifa Kassam, Employers are Starting to Adopt ‘Menstrual Leave’ Policies. Could it backfire?, Time (Oct. 8, 2021, 2:42PM), https://time.com/6105254/menstrual-leave-policies.
[4] Osayande A.S., Mehulic S., Diagnosis and initial management of dysmenorrhea, Am. Fam. Physician, Mar. 1, 2014, at 341.
[5] Id L.S. 276.
[6] Act of Gender Equality in Employment, Xianxing Fagui Hibuan, art. 14.
[7] Will Worley, The country where all women get a day off because of their period, Independent (Jan. 4, 2017) https://www.independent.co.uk/news/world/africa/zambia-period-day-off-women-menstruation-law-gender-womens-rights-a7509061.html.
[8] Kennedy Gondwe, Zambia women’s ‘day off for periods’ sparks debate, BBC (Jan. 4, 2017) https://www.bbc.com/news/world-africa-38490513?ocid=socialflow_facebook.
[9]Quarshie, Adam. 2017. “Coexist Pioneering Period Policy [Web Log Post].” Hamilton House. Retrieved from https://www.hamiltonhouse.org/coexist-pioneering-period-policy/.
[10] The Menstruation Benefits Bill, 2017, 249 of 2017.
[11] The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018, 255 of 2018.
[12] The Right to Menstrual Hygiene and Paid Leave Bill, 2019, 292 of 2019.
[13] Monika Tyagi, Mihir Shah, A Note On Our Commitment To Increase Women Delivery Partners In Our Fleet, Swiggy Diaries (Oct. 20, 2021) https://blog.swiggy.com/2021/10/20/a-brief-note-on-our-commitment-to-increase-women-delivery-partners-in-our-fleet/.
[14]Period leave debate reignited: Ghazal Alagh suggests WFH option for ‘that time of the month,’ Kangana Ranaut says exceptions be made only for ‘medical’ reasons, Panache, Economic Times (Dec. 15, 2023, 05:36 PM), https://economictimes.indiatimes.com/magazines/panache/period-leave-debate-reignited-ghazal-alagh-suggests-wfh-option-for-that-time-of-the-month-kangana-ranaut-says-exceptions-be-made-only-for-medical-reasons/articleshow/106009178.cms.
[15] Draft National Menstrual Hygiene Policy, 2023.
[16] India Const., art. 14.
[17] India Const., art. 21.
[18] The Delhi Shops and Establishments Act, 1954.
Author: Sneh Kumkum Kaushik
Juris Centre 