Author: Sanjana Parisaboina,Student at Symbiosis Law School, Hyderabad.
The debate of menstrual leave has been there for a long time. Workplaces are progressing due to greater women’s participation. The proportion of women working at an earlier stage was marginal, which was a plausible reason as to why there weren’t policies that cater to their needs. This is not the case in the current scenario which is why, rather than needing women to adapt to men’s workplaces, we need to reshape our workplaces so that they are equitable and sensitive to the needs of all employees. The paper deals with the origin of menstrual leave, the need for a proper policy. In the major part of the paper the author tries to evaluate the various pros and cons and analyses the various contentions that rise during the debate of menstrual leave, while also looking at the practices of various countries when it comes to menstrual leave. The paper ends on the note that though menstrual leave is needed, it must be made compulsory.
Keywords: Menstrual Leave, Policy, Workplace,Employee.
Menstruation has long been viewed as a taboo in both Eastern and Western societies. In 2017 Shri Ninong Ering, Member of Parliament., proposed the Menstruation Benefits Bill, 2017 in the parliament. The bill aimed to provide certain facilities to female employees during menstruation at workplace. The bill proposes to provide employed women with 4 days paid leave and student women with 4 days leave from the academic institution. In addition to this where an employed woman choses to forsake her menstrual leave the bill provides that she should be provided with overtime wages. As of yet the proposed bill is yet to be enacted as a law. Recently, a case has been filed in the High Court of Delhi seeking a minimum of four days of leave for menstruating women, following which the Court directed the government to take an appropriate decision regarding the matter. The apparent question in light of absence of any formal law and the proposal for grant of menstrual leave is why must there even be such a benefit that is legally provided as a statutory right to women?
NEED FOR MENSTRUAL LEAVE
It is a matter of fact that does not need much deliberation that women experience bodily discomfort during the menstrual days which can cause both mental and physical discomfort to the extent that it can prove to be debilitating in professional and personal life of women. The second issue is one that has a gendered overtone which is that women are expected to perform at the same level as their male counterparts in the same setting for the same goal but with an additional bodily encumbrance. This issue is said to be gendered because it is only an issue when put in the context of the work conditions of the other gender. The next issue that raises concern for working during menstruation is for the extreme end of the spectrum of menstrual cases wherein some women suffering from medical conditions such as adenomyosis, polycystic ovary syndrome, endometriosis, etc. have to undergo extreme and unmanageable pain. Also, the usage of phrase ‘extreme end of spectrum’ is deceptive for nearly 10% of the women suffer from these issues and in India the number is estimated to be as high as 20% of the female population of the country.While there is medication that assuages the plight to some extent, the toll that the combined effect of a hormonal dysfunction along with hard medication proves taxing to mind and body of these women. The other notable issue surrounding menstrual leave and menstruation in general is that of public perception. Due to its taboo status and the resulting secrecy, there is absolutely no amount of normality associated with it. As a result, women for an unusually long period of time are left unaware about how to manage menstruation, there is poor access to menstrual hygiene and lastly, there is a constant conditioning woman are subjected to from society that makes the perception of menstruation as a wrong that one is meant to suffer rather than deal with, in effective ways. The relation of any form of menstrual benefit law with public perception of menstruation is convoluted and not something that can be made apparent by way of empirical data, unlike the other benefits that arise out of such a law. Nonetheless, it would not be far-fetched to presume that such a law is a huge step towards normalisation of menstruation in a democratic nation where the legislature for the most part represents the collective conscience of the nation. Given this background two things are apparent, ironically, when it comes to granting differential treatment based on menstruation in workplace, menstruation is treated as a natural bodily function of women that is part and parcel of their being and hence cannot be sufficient for special treatment. Whereas when it comes to normalising menstruation in society and to deprive it of its taboo status, menstruation is treated as an unnatural abomination that women must suffer in secrecy. In this context it is relevant to find why menstrual benefits have still not materialised?
Since menstrual hardship is a societal issue, naturally the root cause lies in the societal perception of the same. In India, menstruation is a sign of impurity and creates restrictions on women in enjoying equal access to public areas. The biggest example of the same is women’s restricted entry into temples during days of menstruation. As a result there is an environment of shame and guilt attached to women’s conscience which makes it a difficult topic to share with the near and dear ones. The naturally flowing corollary of the same is the unawareness amongst the minor women that would experience menstruation for the first time. The second difficulty in adoption of menstrual benefits is the perception of women in workplace. Maternity Benefits Act creates a mandatory obligation on businesses to provide paid leave to women that are on maternity leave. It is largely viewed as a social tax by businesses and some women feel that such noble initiatives can create further barriers to entry in workplace as businesses would rather choose a male worker over them. In light of this reality, the proposal for a menstrual benefits law creates a higher probability for businesses preferring men over women since they would not have to be provided with such benefits for the same amount of work. The end outcome is that a vicious cycle is created wherein women themselves become averse to ideas of benefits and because they are averse to benefits the proposal does not find social support for enactment.
Japan has had a menstrual leave law for nearly seven decades now. South Korea has had a menstrual leave policy since 1953. The concept of menstrual leave first saw the light of day in Japan in the early 20th century when Japan labour unions started to demand leave (seiri kyuka) for their female workers. By 1947, the Japanese Labour Standards were instrumental in bringing into force, a law that allowed women who are menstruating to stay at home. The Labour Standards Law in Japan according to Article 68 states, “When a woman for whom work during menstrual periods would be especially difficult has requested leave, the employer shall not employ such woman on days of the menstrual period.” While requiring that women going through extremely difficult menstruation be granted leave by the company, this law does not mandate companies to provide paid leave or other extra compensation for women who choose to work during menstruation. By 1947, Japan was the only country to have adapted a legislation allowing for menstrual leave. Menstrual leave has manifested as a law in few other countries since. In South Korea, Article 71 of the Labour Standards Law states that female employees are not only entitled to menstrual leave but also get extra pay in case the do not avail the provision of the menstrual leave system. The ‘Act of Gender Equality in Employment’ in Taiwan grants women 3 days of menstrual leave per year that will not be counted in the “common sick leave” that is granted to all employees. The Labour Act of 1948 in Indonesia grants women the right to claim two days of paid menstrual leave per month. In Zambia, Africa, as part of their menstrual leave policy, women are legally entitled to a leave each month with the day off in question being termed as “Mother’s Day”. According to this policy, the employed woman has the right to prosecute her employer on denial of this policy.
Thus, menstrual leave laws as a part of legislature exist in only handful countries across the globe. However, with an increasing emphasis on inclusion and gender equal practices finding their way into the workplace spectrum, organizations across the globe, as of today are propagating and implementing inclusive, affirmative policies including that of menstrual leave. One of the earliest accounts of such a case can be traced to 1912 in a girl’s school in Kerala, India that granted it’s students leaves on account of menstruation.Furthermore, in India itself, the state of Bihar has had two extra days of casual leaves on account of periods for women employees who work within government service. Forwarding to current time, the most globally celebrated organization to uphold and implement this policy is Nike. Nike included menstrual leave in their Code of Conduct in 2007, effective to be implemented in all of its branches and headquarters across the globe. All of Nike’s business partners are obliged to implement this policy as part of the code of conduct that they agree to by signing a standard memorandum of understanding. In the United Kingdom, Coexist, became the first company to implement a ‘period policy’ hoping to give women a healthier work environment and to break taboo surrounding menstruation. In 2005, the Australian Manufacturing Workers’ Union (AMWU) initiated a campaign for menstrual leave and sought 12 days of menstrual leave for a woman per year. 
Following this trend in light of awareness surrounding the significance of menstrual leave, certain fresh Indian organizations are also adopting this policy, including one of India’s largest food delivery systems, Zomato, comprising of around 4000 employees across the nation, 35 percent of them being women. Zomato’s menstrual leave policy allows for 10 days of period leave per year, also applicable to its transgender employees, thus taking one step further in its pursuit of inclusion. “At Zomato, we want to foster a culture of trust, truth and acceptance. There shouldn’t be any shame or stigma attached to applying for a period leave” , says Deepindar Goyal, founder and CEO of Zomato. In 2017 a digital media company, Culture Machine which has 5 offices across India has imbibed a Menstrual level policy within its system where it offers its women employees the FOP (First day of period) leave, becoming the first digital media company to include menstrual leave in its leave policy. Some other Indian companies that offer Menstrual leave include Kolkata based Digital media company, FlyMyBiz, a Bangalore based community work start up, among a few others. More and more startups comprising of young adults in their organization are adopting menstrual leaves in their organizational policies.
CRITICISM OF MENSTRUAL BENEFITS
A prominent female Indian journalist dismissed the idea of paid menstrual leave and called the same biological determinism. The basis for her claim was her own lived experiences where she had to fight head-to-head with the men for the same opportunities. ‘Biological Determinism’ refers to the idea that a human’s traits are predominantly based on what they have inherited at their birth. The concept also holds that such traits are unaffected by environmental factors. The theory is flawed as it is from a time when the study of sociology and behaviour was limited to the physical traits of a human being and accordingly the connotation that comes with it is meant to be negative towards menstrual benefits. The question then arises, is paid menstrual leave tantamount to biological determinism?
A popular example often cited by the critiques is that of Serena Williams who won a major tennis tournament while she was pregnant. The implication that is drawn by this example is that if a woman can play a tournament when she is pregnant then why can’t a woman work on her period? According to the above-stated female journalist, this would be an example of breaking away from biological determinism since a woman is breaking away from the character of vulnerability and fragility.
Both of the above stated arguments are flawed. This is mainly because the premise of the conclusion is unfounded. The first argument made by the female journalist presupposes that to ask for leave on account of bodily concerns is uncalled for since it is playing into the hands of biological determinism. This view screams of dispassion and misplaced self-righteousness wherein an individual that has found the strength to fight unfair circumstances holds it against those that do not wish to even entertain the unfair norms of society. The argument blows both hot and cold in the same breath and is hence not logically sound, because if one claims to have overcome extra difficulties due to a system tipped in favour of men then they have acknowledged that the field is not level for women. And if such acknowledgement has been made then by expecting other women to tread the same field instead of leveling it would be undoing everything that the struggle represents.
The second argument that uses the example of Serena Williams is flawed because it falls into the same trap of self-defeating feminism. Self-defeating feminism could be a situation wherein an idea that claims to be feminist ends up furthering the same patriarchal notions that led to the problem in the first place. In this particular case the female tennis player represents agency and passion to do what she wants to do. This is the virtue that one must derive from her act. However, it is used to define another role for women which is of putting up a strong, resilient character irrespective of one’s conditions. This is tantamount to the role that had been envisaged for men leading to the contentious notion of ‘men don’t cry’.
Another point for consideration in the scheme of menstrual leave is the relation of leaves with the economics of businesses. To understand this, we can consider the example of Maternity leave since it faced a similar critique wherein it was opposed because it was believed that women if provided with maternity leave would become a liability to the firm rather than an asset. In Norway the main set of maternity benefit reforms came post 1977. One study tried to examine the impact of the reforms on the children of mothers that were subjects of the maternity benefit reforms by comparing them with mothers that were not eligible for the reforms. It found that maternity benefits such as paid leave did not raise the overall family income or the amount of total leaves taken by mothers (paid and unpaid). Which leads to the conclusion that whether with or without the reforms, the total number of leaves taken by a mother in one financial year was the same. Therefore, with or without reforms that accommodated women’s needs the net effect was the same.
It is also important to determine where the menstrual benefits must flow from, whether it should be the State or it should be private parties. Once again the example of maternity benefits becomes relevant here because in most western countries maternity benefits are derived from the state but through an insurance scheme. In India if a menstrual benefit scheme is to be created and if there is a burden that is created on the firms then who must pay for the same? Firstly, it is important to note that unlike maternity benefit schemes that provide benefits for prolonged durations, the menstrual benefits scheme is much smaller quantitatively but more frequent. Hence, the burden placed on the firm would be negligible. It is also important to note that schemes such as work from home have changed the job market post COVID-19 and hence, women taking leaves would not render them entirely unavailable for work. Therefore, the argument against menstrual leave on grounds of its financial effect is not sound.
Based on the above-stated data it becomes clear that menstrual benefits have a logically sound reasoning which is grounded in biological and psychological effects of menstruation. The effects of menstruation are not limited to mere physical aspects anymore and in addition to this the increasing rates of disorders such as polycystic ovary syndrome have worsened the plight of women. Secondly, the criticism of menstrual benefits on the basis of biological determinism is unfounded because the idea of menstrual benefits is not tantamount to promoting any biological roles but a mere accommodation of the lived experiences of women. The arguments against menstrual benefits that are based on economic effects of menstrual benefits are also unfounded because if maternity benefits which are much heavier in its quantum for firms cannot prove to be a liability then menstrual benefits can by no stretch of imagination be financially burdening.
In so far as the examples of women such as serena Williams is concerned it is not a logically sound argument as it commits the fallacy of hominem. Since these examples are anecdotal and not objective, they cannot be held as an objective critique of menstrual benefits. There may exist countless examples of women that work despite being on their period but that is no bar to the right to claim one’s plight and the acknowledgment that is due towards the same. Another reason why such an argument is flawed is because for every example of woman that is working despite being in pain there could be women that are unable to show up to work. Therefore, such arguments are flawed and end up neutralising the thrust of opinion.
As far as the future course of action is concerned, menstrual benefits should be turned into a legislation and if they are turned into one then it must not be a mandatory provision. This is because creating any form of mandatory provision would amount to creating an absolute right that is based on a woman’s sex and that could possibly end up furthering the gendered role or expectation from women. Although arguments such as that of ‘Serena Williams’ are flawed, they are a matter of fact and it shows that there are women that are able to carry out their affairs despite being in pain. Hence, to ensure that no set role is defined for women on the basis of their sex, there must not be mandatory legal provisions such as menstrual benefits. It must exist as a right for those that wish to avail it and must not be a blanket right that is mandatory in nature. Secondly, corporates must show increased participation in extending menstrual benefits as they are neither taxing nor detrimental to the operations of a business. Given the new norms post COVID-19 that have increased work from home, corporates can easily accommodate women’s menstrual leaves.
Only with a collective effort of the State and the citizens will menstruation in general be normalised and as a by-product of the same menstrual benefits shall be available to those that wish to avail it.
 Sanjana Parisaboina is a first-year BBA LLB student at Symbiosis Law School, Hyderabad
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 The Menstruation Benefits Bill, 2017, No. 249 of 2017 (India).
 Ibid, Section 4.
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 Jyothsna Latha Belliappa, Menstrual Leave Debate: Opportunity to Address Inclusivity in Indian Organizations, p.606
 Ibid, p.607.
 Ibid, p.608.
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