Let's Talk About Menstrual Leaves In India

The Legal Landscape

Kerala's recent move to introduce menstrual leave for students marks a significant step in recognizing menstrual health as a matter of dignity, equity, and educational access. But recently, the Chief Justice of India (CJI) and his companion Judge of the Supreme Court of India (SC) refused to entertain a Public Interest Litigation (PIL) for framing a nationwide menstrual leave policy in India. The apprehension of the CJI was that compulsory menstrual leave will cause an “amount of damage” to the career of women as “Nobody may give them big responsibilities. In judicial services, people may not assign trials to them.” By this refusal, the SC has reiterated its stands on menstrual leave policies in the preceding years. Nevertheless, a recent white paper on Menstrual Leave Policy by the Centre for Research and Planning, SC, proposes two antithetical menstrual leave models with constitutional footing under Article 15 (3) of the Constitution of India by advancing gender equality, dignity and fairness at the workplace.

Menstrual Intensity and its Impact on Workplace Productivity

The average age of the first menstrual period (menarche) for a girl in a tropical country like India is between 12-13 years, and lasts till the menopause sets in at an average age of 47. Menstruation is the onset of bleeding and hormonal changes preparing a woman's body for possible pregnancy with symptoms of pain and discomfort occurring before, during and after periods that repeat on a 28-days cycle. These symptoms could include dysmenorrhea (cramping pain in the lower abdomen occurring just before or during menstruation), heavy menstrual bleeding and premenstrual syndrome (PMS) with reported prevalence of 46-86%, 23-49% and 40-85% respectively, as reported in several primary studies. An Indian primary study reveals that as high as 95% of participants reported decreased job performance during menstruation. Other international studies from Malaysia and Netherlands also show menstrual symptoms reduce productivity more than absenteeism, with 80.7% reporting an average loss of 23.2 days per year. Misinterpreting the link to job performance as women's weakness may lead to discrimination. Instead, greater awareness and acceptance by the employer is required for inclusive and supportive workplaces.

Ground realities surrounding mensuration and Menstrual Leave

The past few years has seen discussions on menstrual leave and hygiene in the public domain. This also includes criticism from women. Contrast this with the ground realities as women take extreme steps when they must continue to work without rest during menstruation. The “villages of womb-less women” is an example of women undergoing surgical procedures to remove their womb so that they do not bleed during mensuration and can find jobs as temporary sugarcane harvesters in several villages in the western region of Maharashtra region.

When reluctance of employers is seen to hire women if they ask for leave during mensuration, especially in the informal sector, it results in women taking illegal pain drugs at work with serious side effects and long term adverse health effects, all in exchange for a day off. This is why women welcome the move towards menstrual leave within the unorganized sector too.

In this background, any talk of equality can emerge only if the differences are accepted and addressed. It is more about looking at the ground realities surrounding mensuration and building structures around them to ensure that women participate in their tasks, rather than excluding them.

Absenteeism and drop-out rates during menstruation due to lack of Menstrual Health Management (MHM) is also a ground reality when it comes to girls in schools in India. Earlier this year, a different bench of the Supreme Court has expanded the scope of Right to Education under Article 21A of the Constitution of India to include access to menstrual health as a fundamental right, with schools at the centre of the intervention point.

Taking this forward, employers should also be made as interventions points for policy around mensuration including menstrual leave when women enter the workforce.

Legitimacy for menstrual leave

Public health is a state subject under the Constitution of India, and in the past years there are few States that have adopted menstrual leave policies. These policies are varied in terms of the nature of leave that is available for mensurating women in the workplaces, and differ in its requirement of medical proof. For example, Bihar is the first state in India to introduce a menstrual leave policy by a state order in 1992, permitting menstrual leave for two days in a month. month. Karnataka has very recently provided for one day of menstrual leave per month across sectors, covering both public and private, without requiring medical certification. A range of organizations have taken steps to incorporate menstrual leave policies within their workplaces. Nevertheless, private member bills in 2017 and 2022 were never passed.

Globally, Japan was among the first countries to introduce menstrual leave in 1947, allowing women to take time off for menstrual discomfort but it may not always be paid. However, evidence from Japan suggests the percentage of women taking menstrual leave has gradually decreased with time, and that only 0.9% of the surveyed women actually use the leave. These low numbers reflect hesitation among women to avail the leave because of the stigma attached with the disclosure requirement. In these circumstances, the terminology used to describe the menstrual leave at the workplace becomes key. In these cases, the nature of the leave must be of “no questions asked leave” may be explored.

Since Japan, many other countries have incorporated some type of menstrual leave policy including Indonesia, South Korea, Taiwan, oscillating between a few days of leave, and paid to unpaid leave.

Some direction regarding the way forward

While menstrual leave policies aim to recognize women's health needs in the workplace, they often raise concerns about potential gender discrimination, misuse, and stigma. The stigma attached to the topic of mensuration even today may disincentivize women to avail leave that is labeled as menstrual leave or requires a medical permission every month. This requires the need for a neutral terminology in order to ensure privacy. The decision to avail the leave should be left to the women, as mensuration cycles are highly disruptive and can range widely from one woman to another. In this context, homogeneity of solution for a heterogeneous issue may not be practically possible.

A leave model that combines protection of anonymity with a “no questions asked” policy, or an expansion of the existing casual leave policy may also be worth exploring. While the model may better suit the organized sector, it may be worth incorporating as a first step before other sectors are explored.

Female friends from varied professions that we spoke to say that while there are chances of misuse of menstrual leave policies, they stressed that they would not misuse it, and that misuse can be curbed by capping the number of leaves to a maximum of 10-12 days. Women also acknowledge the taboo with availing menstrual leave, and that any kind of menstrual leave policy will be successful only if the leaves are normalized. They also mention that menstrual experiences vary widely, while some women suffer from severe pain or conditions like PCOS or endometriosis, others experience minimal discomfort, so policies should remain flexible rather than rigid. Another important aspect that emerged from these discussions is the need for workplace empathy as many feel that a supportive manager and flexible deadlines often matter more than formal leave policies. There is also anxiety that formal menstrual leave could negatively influence hiring or promotion decisions, potentially making employers hesitant to recruit women if such policies are perceived as burdensome. These comments call for the need for stakeholder consultation which is vital to ensure that recommendations reflect the needs of women. Measures to sensitize both employers and employees in order to prevent its misuse is also required when handling menstrual leave in order to make it part of the health measure at the workplace.