Looking Beyond the Law: The Case of Menstrual Leave in India

Abstract

In this article, we discuss the significance of and need for separate menstrual leave in organisations, besides examining its extant legal position in India and across other jurisdictions. We have further made an attempt to analyse the introduction of menstrual leave in the context of “environmental, social and corporate governance” initiatives. Additionally, we have also examined the evolving industry practice in India with respect to implementation of policies vis-à-vis menstrual leave and related benefits.

Introduction

Globally, the professional environment and work culture has been constantly evolving, which continues to encourage employers to adopt and adapt to ever-changing workplace dynamics, inter alia from workforce retention and best practices standpoint. The new world of professionalism is inter alia driven by diversity, equity, and inclusion (DEI) and environmental, social and corporate governance (ESG) practices. Organisations are putting their best foot forward to adapt to the dynamic circumstances and inculcate progressive practices to accommodate a diverse workforce. Organisations have also implemented modifications to infrastructure, formulated grievance redressal mechanisms and undertaken several other initiatives to address barriers that may arise on account of gender bias, sexual orientation, disabilities, etc. Amidst such critical and strong initiatives, there remains a topic that is yet to be brought to the forefront despite it being an inevitable natural phenomenon for women, which is “menstruation”. Menstruation or what in common parlance is termed as “period” is till date considered a taboo in society, besides carrying an inexplainable stigma.

Need for separate menstrual leave

Women experience varying levels of physical discomfort and pain during their menstrual cycle. This is also accompanied by hormonal changes which results in shift in mood and emotions. During such time, women may find it difficult to maintain a consistent level of productivity in an otherwise fast-paced work environment. Many women also suffer from disorders related to menstruation such as ovarian cysts, endometriosis, dysmenorrhea, etc. Owing to the stigma attached to menstruation, even a mere interaction around the topic is brushed under the carpet. In view of the same, the concept of “menstrual leave” remains a highly neglected issue in India.

As such, leave on account of menstruation is not regulated under the extant Indian labour and employment law framework. Menstrual leave may be construed as a special leave that an employer may offer to its female employees on account of experiencing discomfort during their menstrual cycle, in addition to their entitled bucket of leaves (usually categorised as earned, casual, and sick leaves). Women often hold back from expressing any menstruation related discomfort in a work environment, due to various factors including the stigma attached to menstruation, fear of facing discrimination, losing out on professional opportunities, etc. Accordingly, introduction of menstrual leave by organisations would not only promote healthy discussions around menstruation, but will also ensure sensitisation of the workforce and society at large.

If employers allow their women employees to get necessary rest during their menstruation cycle, it will result in increase in their productivity levels and enable them to focus well on professional assignments. From an optical standpoint, formulation and implementation of such accommodative policies and beneficial provisions will also facilitate employee retention and will assure employees that their concerns are positively addressed by their employers.

One may argue that there is always a scope for a woman employee to avail sick leave from their bucket of leaves ordinarily available to them. However, menstruation is a natural biological process which does not, as such, emanate from any illness or disease. Therefore, it is high time that we normalise as well as acknowledge the concept of “menstruation” and accommodate and support women’s needs where necessary, so far as professional commitments are concerned.

Legal position

While few countries (as discussed below) have introduced and formally recognised menstrual leave as part of their legal regime, amongst majority of the other countries, the concept of “menstrual leave” remains a remote topic and accordingly, this aspect has not been addressed as of date.

Other jurisdictions

A Japanese statute¹, which dates back to 1947, legally requires an employer to allow a woman employee to avail leave on days of the menstrual cycle as and when requested. Many countries have taken cue from Japan and incorporated such statutory provisions within their legal framework.

In Indonesia,² female workers who experience pain during their menstrual cycle are required to inform their employer and are accordingly entitled to not report to office on the first two days of their menstruation. South Korea³ provides for 1 day of paid leave per month which is accorded to female employees pursuant to them making a specific request in this regard. In Taiwan⁴, female employees experiencing difficulty in performing work due to their menstrual cycle are entitled to make a request for 3 days leave in a year (with a limit of 1 leave in a month). Any leave exceeding such 3 special leaves will be deducted from their available bucket of sick leaves. Such prescribed menstrual leave of 3 days and the sick leaves can be availed at half the rate of such employees’ salary/pay. In Zambia⁵, female employees are entitled to 1 day’s leave each month without having to produce any valid medical certificate in that regard. Spain⁶ has recently become the first European nation to introduce menstrual leave as part of its legal regime, wherein female employees can avail 3 to 5 days’ leave due to menstrual pain on production of a doctor’s note and the State social security system would back the same financially.

India

As mentioned above, the existing labour laws in India do not expressly envisage or provide for paid/unpaid leave on account of menstruation, and as such, there is no legal requirement for Indian employers to provide menstrual leave to their employees as of date.

That said, interestingly, pursuant to a notification/order issued by the Government of Bihar in 1992, the State Government grants 2 consecutive days of “special” leave per month to female employees working in connection with organisations under the aegis of State Government. Based onour informal discussions with the Bihar Government officials in this regard, we understand that grant of such leaves continues to be in practice. The Human Resource Manual⁷ implemented by Bihar Vikas Mission (a body formed by the State Government for implementation of various schemes) also makes reference to such special leave for female employees. Aside from the above, more than a century ago, in 1912, a government school in Kerala⁸ provided menstrual leave to its students during their annual examinations and permitted them to attempt the same at a later stage.

In 2017, a private member’s Bill was introduced before the Parliament of India, Lok Sabha by Mr Ninong Ering (a former Lok Sabha Member of Parliament from Arunachal Pradesh) to inter alia provide 4 days’ paid menstruation leave per month to women employees in any establishment registered with the appropriate Government. Aside from that, the Menstruation Benefit Bill, 2017 (Bill) proposes to implement menstrual leave, other related benefits and sets out a grievance redressal mechanism under the Bill. However, the Bill was not tabled for discussion before the Parliament. Mr Ering again tabled the Bill during the 2022 Budget Session in the Arunachal Pradesh Legislative Assembly, as a Member of Legislative Assembly, but the Bill was withdrawn shortly thereafter. As such, the legal position in this regard remains unchanged as on date.

Recently, the Minister of Women and Child Development has, in her response⁹ to questions in Lok Sabha regarding provisions of menstrual leave, stated that the Central Government servants are not entitled to any provisions for menstrual leave currently, and at present, the Government is not examining any proposal to include such leaves in the Central Civil Services (Leave) Rules, 1972. That said, the Government has undertaken various initiatives for raising awareness regarding menstrual hygiene and health and has also taken steps to increase access to menstrual hygiene products.

In January 2023, a public interest litigation (PIL) was filed before the Supreme Court of India (SC), seeking that a direction be issued to all the States to frame a policy for menstrual pain leave for female students and working women under the provisions of the Maternity Benefit Act, 1961. However, the PIL has been disposed of by the Supreme Court by way of order dated 24-2-2023¹⁰, suggesting that it would be appropriate if the petitioner submits a representation to the Union Ministry of Women and Child Development which may take appropriate decision in this regard.

Having said the above, over the past few years, employers have begun to realise that substantial amount of work and effective implementation of policies and procedures is required to be undertaken than what is statutorily mandated, from workforce retention, employee welfare as well as ESG standpoints. The Securities and Exchange Board of India (SEBI), by way of Circular¹¹ dated 10-5-2021, sets out business responsibility and sustainability reporting requirements, mandatory for the top 1000 listed companies in India, which inter alia also focus on promotion of inclusive growth and equitable development of business. Such reporting requirements provide for disclosures inter alia pertaining to gender composition, measures undertaken for employee well-being, measures undertaken to ensure a safe and healthy workplace, instances of actions taken to address the concerns of vulnerable/marginalised groups and training on human rights issues and policies. Investors (particularly foreign investors), and in some cases banks, are seeking to review organisations’ ESG compliance status from a business perspective, prior to investment or lending of loans. In this regard, implementation of policies governing menstrual leave will also aid organisations in achieving their DEI goals under the prescribed ESG guidelines.

Industry practice in India

While there is no law governing menstrual leave in India, organisations are free to unilaterally take a decision and contractually extend more beneficial terms of employment than those provided under the applicable legal provisions. Accordingly, several industry players in India are beginning to formulate specific internal protocols as regards employee wellness and extending benefits including menstrual leaves for their employees.

A Mumbai-based media company¹² announced a policy of offering leave to women on the first day of their period. An integrated marketing agency¹³ also adopted such policy soon thereafter. Two prominent Indian food delivery partners also introduced menstrual leave for its employees. While one¹⁴ announced a menstrual leave of up to 10 days per year for all women employees (including transgenders) with 1 period leave for each menstrual cycle, the other¹⁵ introduced a “no questions asked” 2 days’ monthly time-off policy for all its women delivery partners during their menstrual cycle. In addition to grant of such leaves, the women delivery partners will also be entitled to minimum earnings during that time. One of the leading organisations in the education technology sector¹⁶ also updated its leave policy to include period leaves. As part of the updated leave policy, the organisation’s women employees can avail up to 12 period leaves in a year. Each month, 1 period leave will be credited, and women employees can avail either 1 full day or 2 half-day leaves each month. Many¹⁷ other organisations have taken the initiative to implement menstrual leave in their employment practices. Further, many organisations also provide other benefits such as provision of sanitary pads at a nominal rate at their premises for their employees.

While organisations are gradually embracing the natural phenomenon of menstruation and displaying a progressive approach, mere introduction and implementation of menstrual leave may not be adequate. Managers and employees should be trained to deal with such situations appropriately and combat the inhibitions surrounding menstruation. Managers should facilitate a safe space for their workforce to be able to communicate effectively without any hesitation and boundaries.

Concluding remarks

Building an inclusive work environment assumes great significance, as being emphasised, and experienced in recent times. Implementation of menstrual leave is a meaningful step towards breaking decades of stigma. It is important to adapt to the constantly evolving workplace practices and inculcate good practices to cater to the welfare of the organisation’s workforce. While organisations have only recently begun to implement the practice of providing menstrual leave and the extant Indian legal regime has also not addressed this aspect as of date, the Government of Bihar has been ahead of its time in this regard. Organisations should take steps to facilitate and maintain a safe and healthy work environment, which may be done by introducing policies, offering requisite benefits, extending support, and sensitising the workforce as a whole. Making way for open conversations and offering support to women in the workplace in relation to menstruation, without attaching any shame to it, will go a long run in creating the much-needed shift in the world of work.