When Paid Period Leave is Mandatory

When Paid Period Leave is Mandatory

Authors: Aparajita Bharti and Mitali Nikore
Published: 29th December 2023 in the Hindustan Times

“All women, girls and persons who menstruate are able to experience menstruation in a manner that is safe, healthy and free from stigma”. This is the overarching aim of India’s recent Draft Menstrual Hygiene Policy 2023. But are paid period leaves the best tool to achieve this aim?

Overall, even today, nearly 65% of all working women in India are employed in the agriculture sector, about 40% are helpers in household enterprises, and almost a third run their own small businesses. Only 24% of working age urban women are employed, as opposed to 40% of rural women. Even amongst urban women, almost half of whom are in regular salaried employment, close to 55% work without a written contract, and 45% are not eligible for any paid leave.

In this scenario, legally mandated paid period leaves funded by employers are likely to, first, only be offered to a small subsection of women working in the urban corporate sector, and, second, may serve to create additional barriers for those women who are yet to enter formal employment.  By imposing an additional cost on employers linked only to employees who menstruate, the unintended adverse impact on women’s participation in the workforce may end up far outweighing the benefit of any such legislation. Further, it discriminates against small and medium enterprises, nearly a fifth of which are led by women, which may lack financial resources to meet these legal obligations.

The Union Minister Ms. Smriti Irani recently alluded to this risk, which is in fact based on existing evidence from the implementation of laws such as the six months paid maternity leave. For this reason, even in countries like Spain, where menstrual leave has been legislated, the bill is footed by the public security system and menstruators need a doctor’s note certifying debilitating symptoms to avail them. Further, women who have not previously paid into Spain’s social security for the preceding six months are not eligible. All these guardrails are an explicit recognition of the risk of discrimination in hiring, retention, and promotion, in case employers are legally mandated to pay for unconditional menstrual leaves.

So where do we begin in India, given our large informal economy and low female labour force participation. Our answer – look beyond legally mandated paid period leave towards an all-of-society approach. 

First, focus on the infrastructure around menstrual hygiene management. It’s 2023, and workplaces still continue to exist without separate or clean toilets for women, even in major metro cities and even government’s own offices. Rather than paid period leave, Central and State governments can prioritize establishing minimum legally mandated standards for separate, clean, well-maintained toilets for men, women, persons with disabilities, as well as gender neutral toilets with sufficient provisions for free or subsidized period products, and dignified, green, menstrual waste disposal facilities.

Second, encourage the private sector to be a partner in menstrual hygiene management. The Draft Policy calls for private sector companies to allocate a portion of their corporate social responsibility funds towards MHM initiatives. Companies can allocate their CSR funds for distribution of free sanitary products, supporting social enterprises or community-based organizations engaged in production of sanitary products, improving sanitation infrastructure, and raising awareness.

Third, enhance government funding for menstrual hygiene management through effective gender budgeting. For truly implementing the Draft Policy objectives and targets, government would need to enhance the financial resource envelope for MHM initiatives. While many states have already launched schemes that involve free distribution of sanitary napkins to schoolgirls, these can be expanded to cover additional locations, such as government offices and construction sites. Moreover, government schemes can be developed to upgrade women’s toilets in public spaces, and offer subsidies to women entrepreneurs for manufacturing MHM products.

Fourth, voluntary codes and partnerships to uphold existing labour laws. Arguably, better quality working conditions should be accessible to all Indian women. However, as it is widely known, ensuring provision of minimum working conditions even under the existing labour laws is an ongoing challenge. Civil society can galvanise communities and create voluntary codes around minimum wages, paid weekly leave, overtime allowance, access to toilet and hygiene facilities for marginalised workers. These voluntary codes can be adopted by groups of citizens like private sector organisations, resident welfare associations, market associations and business chambers to improve enforcement of existing laws.

Fifth, organized sector enterprises can offer flexible work arrangements or leaves, as a benefit to their employees. Even without legal mandates, some companies are beginning to recognise that offering period leaves or work from home for menstruators who require rest / medical attention improves employee morale, increases loyalty, and boosts labor productivity. For instance, after Zomato Ltd. introduced a menstrual leave policy in 2020, many others followed, such as Swiggy, Byju’s, Orient Electric and Magzter, amongst others.

There is no argument that workplaces need to accommodate biological differences between co-workers. Further, there is no argument that a large section of menstruators experience a wide range of health complications— cramps, back and muscle pains, bloating, headaches, nausea, among others. However, it is arguable that a legal mandate for employer-funded menstrual leaves is the right course for India at this juncture. We need an all-of-society approach to ensure better conditions for menstruators in India.

Aparajita Bharti is a Founding Partner at TQH Consulting, a policy research and advisory firm; Mitali Nikore is Founder & Chief Economist, Nikore Associates.