The Legal Arc Volume 1 Issue 1 Articles
Sharmila Adyanthaya is a second year law student at NMIMs School of Law, Mumbai. A fellow member of the research team at The Legal Arc is on a mission to highlight the socio-legal issues prevalent in contemporary times.
In the first week of the August of 2020, an Indian food delivery and aggregating company introduced trans-inclusive period leaves for all of its menstruating employees. In a note to the staff, the CEO said the move of introducing ten days leave policy was to “foster a culture of trust, truth and acceptance”.
The move reignited the debate around the policy of period leave. Many people remain divided on the issue. Across India, employees are entitled to a certain number of leaves, apart from days off and holiday leave, which is provided at the beginning of the year. The number of leaves is dependent on the industry, the employer, and especially on the state one works in, relying on the Factories ActandState’s Shop and Establishment Act. Three types of leaves that are generally followed include sick or medical leave, casual leave, and privileged leave. Period leave is a paid or unpaid absence due to a menstruating employee’s inability to go to work because of painful menstruation.
It is a fact that period leave policy and the debate around it applies to formal workplaces. The majority of women in India work in the unorganized sector. This makes the debate a privileged conversation in the eyes of many. Nonetheless, it is important. A Mumbai-based private company, Culture Machine, was one of the first companies to offer paid menstrual leave. It adopted the First day of Period (“FoP”) leave in 2017, where it allowed its menstruating employees to take the first day of their periods off, and the trend was followed by many companies subsequently.
Firstly, let us absorb the medical and scientific reasons cited for the implementation of period leave policy. Headaches, cramps, and nausea caused by periods not only interfere with everyday activities but are much more debilitating in the case of many women who experience a condition of extreme menstrual pain and dysmenorrhea. Women experiencing ovarian cysts, menorrhagia, endometriosis, fibroids, etc. endure much more intense pain than others. The problem is common and widespread with variations reported across the country. Effective treatments are extremely limited. Detractors of the policy question: Why can’t women just pop a few painkillers and get back to work?
One needs to understand that symptoms can only be minimised to some extent using painkillers; hormone treatments such as contraceptive pills, which may cause side effects; and surgery, being the last resort. Even these are not a complete cure. Taking a leave due to these reasons is considered to be humiliating by many, thus women continue to suffer in silence. The stigma attached to the subject results in women paying little or no attention to their health. Hence, the introduction of the friendly period policy comes as a respite from unnecessary shame, normalising menstruation at the workplace.
Many believe this move is more regressive than progressive. Arguments include that the policy will further deepen the gender gap in the workforce, it will further widen the age-old hiring bias, and spark issues of lesser pay and slow promotion of women at work. There exists a fear that the policy might hinder the progress made on the principle of equal pay for equal work, and some consider the policy to be hypocritical in light of the fight regarding the same.
There have been cases of successful implementation and positive feedback for period policies from certain companies across India. The fear of backlash in the form of discrimination against women is not baseless, however, is their solution currently misguided? A similar reaction was observed when the Prevention of Sexual Harassment at Work Place (Prevention Prohibition and Redressal) Act, 2013 and Maternity Benefit Act, 2017 were implemented. Later, the object of these Acts was accepted to be an undeniable right. Paid period leaves take cognisance of an important aspect of women’s healthcare rights.
History has witnessed changes which initially seemed impossible becoming mainstream in work culture. While people who want to maintain the status quo will argue that period leave policies will lead to decrease in productivity and losses, history has witnessed that workers are always keener on working in an environment that respects their rights and the limitations of their body, and that have a requirement of time off. The question which one needs to ask is whether the period leave will break the world as we know it, or bring more female perspective into the work culture, and modify it to meet the needs of more than half a workforce.
Instead of a blanket policy for strictly period-based leave, an overall leave policy for men and women to take time off for a host of reasons, including chronic medical conditions or in the case of women, clinically diagnosed extreme period pain, is advocated. Women in our country rarely recognise that their period pain might be a health issue and consider it something that they need to ‘put up with’ or ‘deal with’. It says a lot about the conditioning women in society undergo, that as the closer they come to powerful positions at the workplace, the more they have to relinquish their comfort to meet the standards of decency and professionalism set by men. If women need to hide their pain at the workplace just to fit in and to not be treated as outcasts, then one is only sculling the boat of patriarchy ahead.
Article 42 of the Constitution of India speaks about just and humane conditions of work. The lack of basic private and hygienic spaces at the workplace for menstruating employees add to the impediment menstruating people face. On the note of men being discriminated against, Article 15(3) of the Constitution, a reasonable restriction to article 15(1), states that the State shall not be prevented from making special provisions for women and children to bring about equality despite the history of social discrimination that they have been subjected to.
Period leave is branded as sexist. Detractors argue that it calls for speculations about whether women will fake pain to take days off. Women who do not work at establishments with Period Leave Policy end up utilizing their sick leaves. One must consider that women across India are not entitled to a similar number of sick leaves; they are not uniform. A woman who suffers from dysmenorrhoea in City A and has availed her seven days sick leave is at a disadvantageous situation, compared to a woman in City B who also suffers from dysmenorrhoea, but has ten days of sick leaves.
It may not be common knowledge, but the government of Bihar has been offering two days of period leave to women employees since 1992 under a ‘Special Cause Leave’. Ninong Ering, a Congress MP and Lok Sabha member from Arunachal Pradesh, had moved a private member’s bill, ‘The Menstruation Benefit Act 2017’. This Bill aimed to provide women working in public and private sectors two days of paid menstrual leave every month. It catered to menstruating employees across sectors, roles and class. The Bill, however, subsequently lapsed. Others were of the view that alternatives such as more sensitized HR policy, lowering the taxes on sanitary pads, and providing accessibility to these pads to those who cannot afford them should be looked into, in lieu of the Bill implementing period leave.
As the debate continues, from giving codenames to period to openly talking about period leave, one realises that society has come a long way and yet has a long way to go.