Paid Menstrual Leave: How Far Is India To Having A Law On This Issue

 

Despite the fact that menstruation is an essential part of a woman’s overall health, we cannot ignore the emotional and physical challenges she faces during this time. These challenges can range from discomfort to serious health issues. Approximately 40% to 50% of women experience varying levels of physical, mental, and emotional discomfort and pain during their menstrual cycle. Hormonal changes during this period can lead to shifts in mood and emotions, making it difficult for women to maintain consistent productivity in a fast-paced work environment. According to a large-scale survey conducted in 2020, approximately 33% of women respondents aged 20 to 29 years reported menstrual problems in urban Indian workplaces.

Disorders related to menstruation, such as ovarian cysts, endometriosis (approximately 42 million women have endometriosis in India, a chronic condition where period pain is so severe that women may struggle to function) and dysmenorrhea, can significantly impact a woman’s work productivity, reducing it by up to 40%. Consequently, some women advocate for paid menstrual leave to ensure that a woman’s ability to work is not hindered by her period. However, our Union Women and Child Development Minister, Smriti Irani, has spoken in Parliament against paid menstrual leave. She believes that such policies could lead to discrimination against women in the workforce. The menstrual cycle and menstruation themselves are normal aspects of a woman’s life journey; they are not a disability. Therefore, she opposes menstrual leave, considering menstruation ‘not a handicap’.

In fact, even the Supreme Court of India did not deem it necessary and dismissed a petition seeking nationwide menstrual leave, considering it a policy issue. Organizations in India are free to decide whether to provide menstrual leave or not. However, there is no legal requirement for employers to offer menstrual leave to their employees. This ongoing debate raises the question of whether to mandate menstrual pain leave.

Period leave exists worldwide: the Soviet Union introduced a public policy in 1922, Japan followed suit in 1947, and Indonesia in 1948. However, it remains uncommon in global economies, including the US, which is considered one of the most developed countries. On February 16, 2023, Spain became the first European country to pass a paid menstrual leave law. This law grants working women experiencing painful periods the right to three days of paid menstrual leave, extendable up to five days. Japan, Taiwan, Indonesia, South Korea, and Zambia have also introduced similar policies to address menstrual health concerns.

While in India, the Menstruation Benefits Bill, 2018, which was tabled in Parliament, demands two days of menstrual leave and better rest facilities at the workplace but is yet to receive consent. The country still does not have any specific legal provision for paid menstrual leave at the national level. The existing labor laws in India do not expressly envisage or provide for paid or unpaid leave specifically due to menstruation. Therefore, there is no legal requirement for Indian employers to provide menstrual leave to their employees as of the current date. Yes, some companies such as Zomato, Byju’s, and Swiggy allow it as a workplace policy. The need for such policies arises from the physical and emotional challenges many women face during menstruation, including pain, fatigue, and mood changes.

 

Is there any legal provision that support paid menstruation leave in India?,

The stance on menstrual leave as a workplace policy is nuanced in our country. As of December 2023, India does not have any specific legislation addressing menstrual leave for female employees. However, there are bills that have been proposed to address the issue, including: The Right of Women to Menstrual Leave and Free Access to Menstrual Products Bill of 2022. This bill proposes up to three days of paid menstrual leave for menstruating women, and notes that menstrual leave is an expansion of Article 21 of the Indian Constitution, which includes the right to life. Furthermore, the Menstrual Hygiene and Right to Paid Leave Bill, 2019. This bill applies to public sector undertakings, subsidiary companies, and other establishments. 

While Indian labour laws include provisions for sick and casual leaves, there is no specific legislation addressing paid or unpaid menstrual leave in the country. Yes, some companies in India have voluntarily introduced menstrual leave policies, there is no nationwide legal requirement for it yet.

On the other hand, our legal system holds that there is no legal requirement for Indian employers to provide paid or unpaid leave specifically due to menstruation. In March 2021,  the Supreme Court of India dismissed a nationwide petition seeking menstrual leave for employees and students, stating that it is a policy issue. Whereas, the Ministry of Personnel considers it a health issue that can affect productivity and performance at the workplace and has suggested menstrual leave or sick leave without the need for a medical certificate. Thus, it should be best investigated by the Health Ministry.

It is also true that our government acknowledges the unique challenges faced by menstruating women. However, it also fears that formalizing menstrual leave could exacerbate period shaming. In a country where many still consider menstruation ‘impure,’ there are concerns that such policies might inadvertently harm women’s career prospects.

 

Some Indian states have already implemented menstrual leave policies. For instance: Bihar: As far back as 1992, the Bihar government offered two days of menstrual leave per month to women in the workforce. Similarly, on January 19, 2023, Kerala issued an order granting menstrual leave for students in all state-run higher education institutions.

Ninong Ering, Member of Parliament from Arunachal Pradesh, had introduced the Menstrual Benefit Bill, 2017, proposing two days of menstrual leave per month for both public and private employees. However, the Supreme Court rejected a petition seeking nationwide menstrual leave, insisting it was a policy issue. Organizations in India can decide whether or not to grant menstrual leave, but there is no legal requirement at the national level.

This was not the first time the issue was raised before the courts. In 2020, the Delhi High Court had similarly directed the Central and Delhi governments to consider as a representation, a petition seeking paid menstrual leave for women government employees - including daily wage and contractual workers. Regardless of such directions, there seems to be little or no action taken at the Central level to introduce a country-wide framework to facilitate paid menstrual leave.

Despite these state-level initiatives, there remains a need for a comprehensive national framework to facilitate paid menstrual leave in India. Advocates continue to raise awareness and push for legal reforms to address this important issue.

Already, India ranks among the 20 lowest countries globally for women’s workforce participation. Additionally, 20% of Indian girls drop out of school after puberty, which highlights the broader challenges related to menstruation. Some surveys say that only about 10% of women are given menstrual leave and 50% believe there is a lack of understanding of menstrual leave in offices. Although women play a massive role in shaping the future of businesses across industries through their unsolicited endeavours and incredible intelligence, yet, we see such bizarre & shocking statistics that evidently point towards ignorant attitudes.

It all leads an argument that menstruation leaves should be paid or not?,

The subject of menstrual leave is a sensitive and lively one in India, leading to a constant debate between those who support it and those who do not.

Supporters of menstrual leave believe that menstrual cramps and other symptoms can significantly impact productivity and well-being. Paid leave allows employees to manage their health without financial penalty. Openly discussing menstruation can be challenging. However, paid leave normalizes periods and reduces workplace stigma, fostering a more inclusive environment. Secondly, paid leave demonstrates employer empathy and support, leading to higher employee satisfaction and reduced turnover. By addressing a biological reality specific to women, paid leave helps level the playing field and reduce gender-based disadvantages in the workplace. It allows women to maintain their earning potential and contribute more fully to the economy.

On the other hand, the argument against paid leave for menstruation is that providing such leaves can increase awareness, but it can also exacerbate gender inequalities. Unfortunately, due to the stigma associated with menstruation, discussion on the topic has often been postponed. As a result, menstrual leave policies remain a subject of debate in India, raising questions about gender equality, women’s health, and workforce participation. Currently, in India, there is no legal obligation for employers to provide menstrual leave to their employees.

Critics argue that employees might misuse the leave for non-menstrual purposes, creating administrative challenges and unfairness to others. Additionally, implementing paid leave adds to payroll costs, potentially impacting small businesses disproportionately. Furthermore, if someone chooses to take menstrual leave, they must disclose this to their supervisor, which might make them uncomfortable and could even result in implicit or explicit discrimination.

Linking leave to menstruation might perpetuate the idea that women are inherently less reliable or productive. Excluding men from similar leave policies could be seen as discriminatory, leading to resentment and legal challenges. Defining and verifying menstrual leave could be complex and intrusive, raising privacy concerns.

Overall, India does not have any provision in law that caters to leave entitlement or benefits specifically for women who are on their periods. In fact, it still doesn’t consider a woman’s period to be a major issue.