MENSTRUAL LEAVE: OVERCOMING THE ARCHAIC THINKING
Author: Aparna Sivaram
Co-Author: Aiswarya R Hormis
Menstruation is a biological phenomenon that is unique to women. However, it has long been regarded as a socio-cultural issue that has often been the subject of many myths and taboos. Such myths and taboos prevent meaningful conversation on the topic. Women with menstruation-related health problems find it difficult to discuss the same. The challenge of addressing the social and cultural taboos is further intensified by the low knowledge and awareness levels among women themselves regarding puberty and reproductive health.
In India, even mere mention of the topic is considered to be a taboo and various feminist movements have been demanding advancement of knowledge on the subject. Culturally, menstruation is perceived as something that is dirty and impure and the origin of this myth can be traced back to the Vedic times. However, scientifically, it is proven that the actual cause of menstruation is ovulation followed by a missed chance of pregnancy. Therefore, there exists no rational reason for considering this natural phenomenon as something that is “impure”. The restrictions that girls and women are subject to, very often have an impact on their emotional and mental state. With the dynamics of the family system in India changing, we see that the economic responsibility in most family units is equally shared by men and women. The disturbed mental state of women combined with the physical stress that they encounter during menstruation tends to reduce their productivity at the workplace and affects their professional life in a detrimental way. This paper seeks to analyze the recent policy measure of menstrual leave and its intended benefits and further discusses whether such a policy measure should be implemented in India or not. It also indulges in a comparative analysis of the policy with those implemented in other countries and thus, provides an international perspective on the issue.
“Ignoring or despising menstruation is one of the ways in which misogyny manifests itself.”
The debate regarding menstrual leave policy is not a new one. Stress at the workplace is an important factor as far as the menstrual function of a woman is concerned. Studies have shown that rise in the level of stress results in psychological issues that induce physiological responses like the activation of the Corticotrophin-releasing hormone nervous system, that might affect menstrual function.
Stress can also result in menstrual dysfunction such as variation in the duration of menstruation, anovulation, the difference in duration and amount of bleeding and so on. It also has a proportional effect to the rise in alcoholism and substance abuse in women which would negatively affect their reproductive health in general and menstrual health in specific. It is also pertinent to note that the rise in stress leads to menstrual abnormality. Menstrual abnormality can be defined as lack of menstrual period, short or long cycle length, or short or long menses. Emily Martin, a feminist anthropologist came up with a pattern in scientific studies relating to how menstruation affects women’s capacity to work. She pointed out that studies “that showed the debilitating effects of menstruation” had to be read along with the post-war periods when “women were displaced from many of the paid jobs they were engaged in” when men were deployed at war. At a time when women were required to assist in controlling the economic situation post-war by engaging in various economic activities, a study found that menstruation was not a primary cause for a reduction in productivity by female workers. This cannot be a coincidence as the results published by the study explicitly supported the crisis prevalent during the time. Martin observed that through her studies on pre-menstrual syndrome during the 1980s, “conjunction between periods of our recent history when women’s participation in the labour force was seen as a threat and simultaneously menstruation was seen as a liability”. This again brings into light the two-fold debate surrounding the nature of mental and physical discomfort that women face during their premenstrual and menstrual phase. Martin suggested a solution to solve the dilemma regarding how menstruation is viewed in the context of the workplace. She emphasized that the need of the hour was to change public perception towards work and workplaces. She argued that, in an industrialized capitalist society, women were looked down upon as a malfunctioning portion of the workforce. A biological process was equated to incapability and inefficiency of a particular gender without any rational basis for the same. It must be kept in mind that women function differently during certain days and often they find it difficult to adhere to the established discipline in the prevalent business scenario. Instead of channelizing our energy towards trying to “fix” an inherently biological process, it would be beneficial if efforts were made towards creating a more accommodating and inclusive society.
In the absence of legislative protection such as the Menstruation Benefit Bill, most of the women who face menstrual difficulties will be forced to take leave from their workplace. This monthly act of the employee creates a negative impression about her in the mind of the employer. He/she may rethink about continuing the employment of the particular employee and replace her with him.
The movement demanding menstrual leave for women employees gained momentum across the nation as demands to further amend the labour laws and make them more friendly to women employees increased. The history of such paid menstrual leave dates back to World War II when countries such as Japan, South Korea, and Taiwan adopted a policy entitling women employees to paid menstrual leave. Another example regarding the same would be the Soviet Union during the 1920s and1930s. The practice of allowing women time off during the menstrual period reflects the broader economic concerns of the Soviet Union. Under the New Economic Policy introduced in 1921, female industrial workers experienced widespread unemployment due to the extensive labour protection measures that were undertaken. While focusing on boosting the economic development of the country during this period, the reproductive health of women stood completely ignored. This led to two very different attitudes towards the role and application of the protective labour legislation of the time. Debates on the subject of menstruation also revealed interesting insights into the Bolsheviks and their views on the role of women in the new Soviet society. In 1928, the People’s Commissariat on Labour held a meeting to discuss the question of female labour and the agenda included a report on the impact on the health of young women between the age of 14 to 18 in the metallurgical industry. From the above, we infer that menstrual leave associated labour policies is not a recent phenomenon.
A 2012 study found that 20 percent of women during their periods experience pain and discomfort to an extent that interferes with their daily activities. This also affects their productivity as they are not able to deliver their best at the workplace. Especially in a country like India, where the majority of the population is engaged in the unorganized sector and are involved in jobs requiring intensive physical and manual labour, menstruating women are deeply affected at their workplace. This calls for some sort of a provision wherein such women are not discriminated against at their workplace, merely because of the natural biological mechanisms occurring in their body. While some suggest that providing menstrual leave to such women would serve the purpose, others argue that adoption of the menstrual leave policy would create a bias in the hiring process and would discourage employers to hire women. They argue that absences would push women out of the decision-making process and would eliminate them from consideration for promotions. It brands every woman who is menstruating as an ill person. Such branding may play into a decade-old prejudice that menstruating women are unfit for work.
In 2018, Australia’s Victoria Women’s Trust offices, which is a women advocacy organization in Melbourne, started offering paid menstrual leave. This did not count as sick leave and the employees were specifically provided remuneration for these monthly occasions. The organization also started encouraging other employers to introduce similar policies and also published a “menstrual policy template” for employers to download and integrate into their organizations. This policy was introduced after the organization launched a project called the Waratah project. The main objective of the project was to positively influence how society framed menstruation and menopause and to improve how women girls experienced these aspects of their lives. The project compiled its findings from data collected from over 3500 women. It examined their experiences regarding menarche, menstruation, and menopause. The project revealed multiple negative beliefs and notions associated with the concept of menstruation and suggested to remedy the same by clearing several misconstructions revolving around the same. The menstrual taboo also operates as an organized institution of the oppression of women and the menstrual leave policy introduced by certain countries, seeks to remedy the same.
The debate was furthered in India recently, when Ninong Ering, a member of parliament representing Arunachal Pradesh tabled the Menstruation Benefit Bill in the year 2017. The bill seeks to provide working women in the public as well as the private sector with two days of paid menstrual leave. Earlier in 2017, Culture Machine, a media company, introduced a one-day menstrual leave policy for the women working in the company. It also launched an online petition appealing to other companies in India to provide the same, but this was opposed by various political commentators. Their primary reason for opposing the same was that it hindered the participation of women in the workforce of the country and that posed a fundamental challenge towards ensuring an equitable society and bridging the gender gap in India. However, the phenomenon is not very new to the Indian set up. Since 1992, the Bihar Government has been providing women employees with the facility of period leave for two days in a month. The human resource guidelines of the Bihar government states that “all women staff are allowed to take two days of special leave due to biological reason and this would be in addition to all the other eligible leaves”
POSITION IN OTHER ASIAN COUNTRIES:
Indonesian labour law contains certain controversial provisions relating to gender-specific entitlements. Apart from the maternity leave, Indonesian women working in mine pits were entitled to menstrual leave. However, the question on the “right” to take leave has created a gulf between the female employees. While office staff is less inclined to stay at home for two days, the operators are keen to take leave.
Japan has offered menstrual leave policies since 1947, when a law was passed allowing any woman with painful periods, or whose job might exacerbate period pain, to take time off. Menstrual leave has been a legal right for Japanese women since 1947. However, many women still refuse to take it due to the fear of social stigma. The tradition of ‘menstrual leave’ started in Japan just after World War II where, according to the 1947 Labour Standards Law, any woman who has painful periods or who has a job which might exacerbate period pains were allowed seirikyuuka (meaning ‘physiological leave’).
In Taiwan, female employees having difficulty performing their work may request one-day menstrual leave per month. If the cumulative menstrual leave does not exceed three days in a year, then they must not be counted towards days off as sick leave. All other additional menstrual leave must be counted towards days off as sick leave.
Women workers in South Korea were first guaranteed menstrual leave in 1997. Article 73 of the Korean Labour Standards Act entitled them to one day leave a month at their request.. Menstrual leave for students first came into action in the year 2005, when the National Human Rights Commission of Korea recommended similar measures for middle and high school students. By 2006, most schools in Korea had a policy allowing the female students to go home without penalty on the days that they were menstruating.
In China, the menstrual leave policy was implemented in Ningxia in 2016 as a result of the discussion made by China’s Olympic swimmer Fu Yuanhui on her fourth-place loss in Rio Olympics, suggesting that as she was subject extreme physical exhaustion during her menstruation which has resulted in slowing down her strokes. This ignited the conversation among Chinese women on how physical exhaustion reduced their productivity at the workplace. Taking their concerns into consideration, the Ningxia government has consciously included a clause on the punishment of employers who did not follow the new guidelines. Shifting the spotlight on Zambia, the country has taken the effort to ensure that the national labour market is women-friendly. The law includes 12 weeks of paid maternity leave for women working in corporate firms for at least two years. This means that they get to stay at home once every month and does not negatively affect their vacation time.
The efforts of Nike should also be taken into consideration in this regard. It introduced menstrual leave in 2007 and made its business partners sign a memorandum of understanding to ensure they adhere to the company’s standards. This is an example to show that even corporate giants resort to menstrual leave policies that support women.
In India, two main bills are dealing with this issue. They are- the menstruation benefit bill as discussed above and the Women’s Sexual, Reproductive and Menstrual Rights bill, 2018. As a part of the ongoing discussion, it becomes relevant to analyze these two bills.
MENSTRUATION BENEFIT BILL, 2017:
This bill has been subject to a lot of criticism by many political and social commentators who believe that the concept of paid menstrual leave only internalizes the stigma associated with menstruation within an organization. Some of the criticisms with the bill can be identified below:
Lack of alternative options: Organizations find it extremely difficult to find alternative options for substituting vacancy arising when a particular woman employee takes leave as they have to meet stringent deadlines in the business field. For example, if the organization is seasonal or to be specific a tailoring unit, they will have rigid deadlines due to the varying factor of nature of work prevalent in the particular field and employers will be put into misery to find substitute employment.
Reduction in productivity: It is the current trend that women resort to corporate jobs. As their percentage in the total workforce is increasing, women employees taking monthly leaves which will be on a rotational basis is going to be detrimental to the productivity of the organization as such. Connected with this issue is the problem of prejudice against women employees by the employers.
Reinforce negative norms: It is a well-known fact that women are often subject to discrimination in the workplace. Providing a facility such as menstruation leave may further increase the instances of this discrimination. According to studies conducted by Monster Salary Index (MSI), the current gender pay gap in India stood at 19% where men earned Rs. 46. 19 more in comparison to women. There may also be a rise in the trend of corporate firms hiring more men than women as their employees as hiring a woman would mean more losses to the firm, considering the number of days they’ll work. Providing menstrual leave may cause discomfort among men, which may result in incidents of workplace harassment. There are numerous discriminatory working conditions that are uniquely applied to women in the workplace. Reports show that women in Tamil Nadu garment factories are restricted from using their mobile phones and conversing with their colleagues, and are also kept confined to the factory and hostel premises, thereby negatively affecting their right to liberty. Another report indicates that women garment workers in Karnataka are subject to similar discrimination and unreasonable monitoring and surveillance, including sending a companion with the women to toilets to ensure that do not “waste time”. There is a need to strike a healthy balance between creating a conducive workplace environment for women and at the same time demand implementation of policies that are tailored to ensure privacy and well-being.
Reduce Equality: In a country like where activists are frantically trying to strike an equal balance between men and women, the concept of menstrual leave may act as a hindrance to achieving gender equality. It may encourage the patriarchal notion that women are species who require special care. Public discussion on menstruation has been considered to be a taboo in society. for the same reason, women may refuse to go to the workplace as taking a menstruation leave would result in others knowing that that particular woman is menstruating, which often makes the woman very uncomfortable.
In addition to the above-highlighted criticisms, it is pertinent to note that women who suffer from dysmenorrhea and other related menstrual diseases, constitute a small percentage of the total population of women who constitute the working class fall outside the purview of the issue that the bill seeks to address. Their specific medical needs require a more sensitized and evolved human resource policy.
Risk of misuse: A 2002 study of Nike and Adidas workers in factories in Indonesia found that workers belonging to the Nikomas Gemilang factory who wanted to claim legally mandated menstrual leave was subjected to a humiliating process of proving that they are menstruating in front of female factory doctors. This indicates the risk of misusing the policy in question by imposing unreasonable conditions for the grant of menstrual leave. This would completely defeat the purpose of the policy and may increase the difficulties for female employees instead of solving them.
THE WOMEN’S SEXUAL, REPRODUCTIVE AND MENSTRUAL RIGHTS BILL, 2018:
This was a private bill tabled by Dr. Shashi Tharoor in the Lok Sabha recently. The objective behind this bill was to amend certain enactments to emphasize on the role of a woman as a reproductive agent and ensure that menstrual equity is granted by the state.The bill recognizes the fact that women have been made vulnerable by the social construct of patriarchy, leading to their exclusion to other social spaces. In furthering this equality, the autonomy of the woman must be rightfully restored by granting her agency over her sexual and reproductive rights. A major source of inequality would be the absence of access to menstrual hygiene products that puts girls in rural areas out of school and discourages women from taking up jobs, thus pushing them into the vicious cycle of dependency. Statistics show that only 18% of women in India have access to sanitary hygiene. The absence of an equal reproductive process in men has resulted in a lack of adequate consideration and attention being given to the issue of female menstrual hygiene. This disparity can be removed by making it obligatory on the part of schools and public authorities to supply sanitary pads free of cost to any girl or woman.
The bill seeks to amend the Right of Children to Free and Compulsory Education, 2009 and states that a separate toilet for boys and girls and sanitary pads, preferably in the toilet for girls, shall be provided free of cost, to individuals who use these facilities. It also places this obligation on public authorities and states that sanitary pads shall be provided in every bathroom which is in the premises of the public authority.
Concerning reproductive rights, the bill proposes to rename the Medical Termination of Pregnancy Act, 1971 as the Legal Termination of Pregnancy Act so that there is no mistake of understanding that the woman holds autonomy over her body and the decisions related to her body. The bill also places importance on the removal of any ambiguities so that the medical practitioners do not feel unsafe due to fear of criminalization under Section 312 of the Indian Penal Code that penalizes anyone even of the mother herself for voluntarily terminating pregnancies.
The bill proposed by Dr. Tharoor is laudable because it addresses the issue of the various social taboos that surround the health choices that women make. The bill brings to light the sexual autonomy of a woman, an aspect that has not yet become a part of the empowerment movement for women in the country. However, the bill has also faced a lot of criticisms concerning the fact that providing facilities without sensitizing women about the importance of sanitary hygiene is redundant. According to a study, it was shown that 60% of rural women feel ashamed of buying pads from the local shop and still use cloth. This makes them more prone to cervical cancer. To get rid of the taboo education and awareness about the physical and mental stress that women go through and how society can be more accommodating about the same is essential.
CRITICAL ANALYSIS OF MENSTRUAL LEAVE POLICY: IS IT NECESSARY?
In India, the most common phrase in relation to menstruation is, “Tabiyat kharab hai”(I am not well). The impact of menstruation is different for different body types. To generalize the biological process as something that causes physical and mental stress for all women would not be a just and reasonable understanding of the issue. Over the years, women have fought hard to start a conversation about menstrual health issues. Granting of menstrual leave would only prove to be counter-productive as the conversation would be thought of as unnecessary and would further result in the thinking that menstruation is an illness. Menstruation cannot be construed to be an ailment or an illness and hence granting a provision like maternity or periods leave will reduce it to the level of illness.
It is also relevant at this point to observe that women constitute about 40% of the total workforce in the country. While this is an improved sign as it denotes greater participation of women in the workforce of the country, it is essential to sustain this percentage and ensure a steady rise. A menstrual leave policy at this juncture threatens to once again bring back the bias that was earlier in place for hiring women. Such a policy would entail women employees of an organisation taking leave on a rotational basis and would disincentivise them from engaging female employees. This only catalyses the misogynistic thinking that goes into the employment sector.
So what is the solution? In a country like India where most of the population lives below the poverty line access and affordability to menstrual hygiene products is a serious issue. In such a situation, the primary concern of the governing authority should be towards reducing prices of these products and ensuring equitable access for all, whether rich or poor, white collared or other colour collared. It is blatantly unjustified to exclude sanitary hygiene products from the purview of other medical necessities for exemption from taxes. In 2018, India scrapped its 12% tax on all sanitary products following months of campaigning by many women rights activist. The protests happened a year after the government introduced the Goods and Services Tax (GST) on all goods including the 12% duty on menstrual hygiene products. The campaigners argued that the tax would make these products even more unaffordable. The fact that the government branded tampons and sanitary pads as a luxury item, sparked immediate campaign and various court challenges and petitions were filed, which received more than 40,000 signatures. The campaign marked its success when India’s interim finance minister Piyush Goyal announced that all sanitary hygiene products would be 100% tax-free. Another concept in this regard is that of period poverty. Period poverty means the inability to access menstrual products and lack of proper knowledge about menstruation due to a poor socio-economic background. Period poverty is not a phenomenon that is indigenous to the Indian scenario, but traces of it can be found globally. According to Charity Plan international, UK one in ten disadvantaged girls cannot afford sanitary products. The success story of the campaign in India does not extend to the horizons of the United Kingdom. The latter still has a 5% tax on most sanitary hygiene products. So financial cuts in the pricing of sanitary hygiene products could be a positive tool towards enabling women to gain the confidence of availing the various menstrual health facilities and systems in place.
The above suggestion caters to the rural segment of the working female population. Moving the discussion onto urban women working in the organized sector of the economy, workspaces must become more creative and sensitive to the issue. With the advent of globalisation, the growth of multi-national companies has substantially increased. One of the most indispensable ingredients of a business is its employees. The human resource department of a corporate organisation is indispensable as it is a significant contributor to the success of the business. It is primarily responsible for putting the various systems and procedures into proper practice. It acts as a bridge between the company and its employees and helps in reducing financial risk. It oversees the employees and delivers services to meet the needs of the company and its employees. From the above, we can infer that the human resource department plays a pivotal role in ensuring that targets are achieved and the entity functions smoothly. It must make sure that the employees are perceived as an asset to the business enterprise and not a liability. An evolved human resource policy that understands the need of the hour without affecting the productivity of the firm, thereby creating a bias, would help in going a long way in enhancing the career graph of a woman. Also, instead of granting two days of fixed leave a month, an hourly leave policy should be adopted. This would give every female employee a stipulated number of hours that she can avail of as paid leave. This provides greater flexibility of working hours without affecting the productivity of the organization. The phenomenon of human resource department formulating policies in favour of menstrual leave came to be popularly known as FOP (First day of period) Leave. Thus, more cooperative management and sincere effort from the apex levels of administration together with a workforce having high levels of commitment and integrity will help the organisation incorporate a friendly yet unbiased policy.
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