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Menstrual Leave: Legal Implications and Workplace Policies

Every woman after attaining the age of puberty suffers through biological and reproductive conditioning known as Menstrual Cycle or Periods. In such a situation, a woman gathers pain, irritation, etc. The very concept of Menstrual Leave came to existence and recognition after Zomato; a food delivery app which provided paid monthly leaves to female employees who were going through the menstrual cycle.

Many other Indian companies like Ivipanan, Swiggy, Byju's, Magzter Industry, Mathrubhumi, Flymybiz, ARC, etc. after such great iniative, have started providing paid menstrual leaves to the female employees of the company along with providing certain other benefits.

Menstruation has become a burning yet very unbothered issue in the country as large. The matters relating to menstruation is kept privately amongst individuals and for such a major issue, proper medical facilities and sanitary facilities are yet not provided to the females who are of menstruating age.

Studies have found out that pain derived from menstruation to a woman is similar to a person having a heart attack. Such an experience shall reduce productivity of the employees and can menstrual leave basically implies a paid leave(s) to female employs or students during menstrual cycle

What is Menstruation

Menstruation or periods is normal vaginal bleeding occurring to a woman/ female every month. Such event takes place in order to prepare a women or female for process of pregnancy. In case there is no pregnancy occurring to the person, the uterus or the womb shed its lining leading to release of menstrual blood. The menstrual blood is partly in form of blood and tissue inside the uterus.

The process of menstruation occurs once a female attains the age of puberty. It can occur during the age of 8 years to 17 years. Menstrual Cycle occurs in every 21 to 35 days and it may last within 2 to 7 days.

Menstruation occurs as a result of release of hormones estrogens and progesterone from ovaries in a female's body. Menstrual Cycle ends at the age of 40s or 50s when ovary stops releasing hormones. This stage is known as menopause

The menstrual cycle occurs in 4 stages:

  1. The menses phase- it is at the beginning wherein the lining of uterus sheds through vagina in case no pregnancy occurred
  2. The follicular phase- this stage occurs during 6 to 14 days and in this stage, the estrogen hormones level starts to rise and it causes lining of the uterus to thicken and grow
  3. Ovulation- It occurs during 14 to 28 days of menstrual cycle. There is a sudden release in another hormone which causes ovary to release an egg
  4. The Luteal Phase- In this phase, the ovary travels through fallopian tube after eggs leave ovary and reaches uterus. This is last stage from 15 to 28 days

Menstrual Cycle occurs as a part of reproduction by a female or women
During or after menstruation, a woman may suffer from nausea, fever, lack of concentration or difficulty in focusing, tiredness, reduced emotional control, increased sexual desires, etc.

What is Dysmenorrhea?

Also known as Painful Periods, it is extreme pain suffered by women in periods. It is also known as menstrual cramps and usually occurs when uterus contracts to shed its lining. Around 20% of women have or suffers the Dysmenorrhea. Such may occur before beginning of periods or during the periods stage. The pain might be mild in nature and in certain cases very severe in nature that it affects the day to day activity of a woman

There are 2 types of Dysmenorrhea i.e. primary dysmenorrhea and secondary dysmenorrhea
  1. Primary Dysmenorrhea- It usually occurs 1 or 2 days before the beginning of menstruation and is mild pain. Such pain doesn't occur as a cause of medical condition but a general pain occurring due to the menstrual cycle. The pain usually occurs in lower abdomen, thighs or back.
  2. Secondary Dysmenorrhea- It is very less common to occur. Secondary Dysmenorrhea is usually more severe than Primary Dysmenorrhea. It occurs to any condition or any kind of infection which has occurred in reproductive organ of a female. The intensity and impact of such dysmenorrhea usually lasts longer than actual menstrual cycle in most cases

What is Menstrual Leave

It can be said to as a leave given to female employees or students during the phase of menstrual cycle. In certain cases, option is providing to females to opt for leaves during menstruation whenever pain, discomfort, cramps, etc. is suffered by them.

Article 21 of The Indian Constitution provides right to life and personal liberty. In Kharak Singh vs. State of Uttar Pradesh, it was held that the term 'life' in 'right to life' doesn't mean mere animal existence.

A plea was filed before the Hon'ble Supreme Court of India seeking paid menstrual leaves for female employees and students during menstrual cycle. The plea also intended to introduce Women's Sexual Reproductive and Menstrual Rights Bill, 2018 which intended to provide free sanitary pads to females at their premises by government authorities

The bill was rejected in the Legislative Assembly itself after all the ministers rejected to discuss about such an issue stating it to be an 'unclean topic' which shall be prevented from such discussions

The Supreme Court as well rejected the plea stating that such a plea may lead the companies to lay off female employs or many company also may prefer male employees over female employees and allowing such leaves may also affect the productivity of the company. Other problems can also be faced by female employees and students as whole.

Currently no act or bill expressly provides and defines menstruation and menstrual leave in India

Many states and companies have recognized menstrual leaves and have directly or indirectly provided certain provisions with regard to menstruation. Kerala has partially allowed menstrual leaves by allowing female students to give annual examinations at a later stage if it occurs during the menstrual cycle. Similarly, state of Bihar has allowed 2 consecutive leaves as a part of menstrual leave to female students and also introduced Vikas Mission which would formulate many schemes w.r.t. menstruation. Zomato; a food delivery app was the first company to take the move with regard to menstrual leave.

Menstrual leave and law:

In Anushree VR vs. Government NCT of Delhi (2015), The High Court of Delhi held that Menstrual Cramps and pain are valid reason for taking leaves from workplace and no female shall be discriminated due to menstruation in workplace. Although menstrual leave was not recognized in this case but taking leave because of menstrual cycle was held to be a valid reason for any female employee

Under Article 15(3) of The Indian Constitution, it was held that state can make special provisions for women and children. Hence, The Constitution of India provides special power to the state to make rules or provisions w.r.t menstrual leave as it is a condition only suffered by women. Moreover, Article 14 of the Indian Constitution as well provides equality before law but exceptionally it allows reasonable classification to certain classes, castes, genders religions, etc.

Article 47 of Indian Constitution provides that state shall provide provisions for men and women for level of nutrition and standard of health which may include menstrual leave as well. Similarly, Article 42 of Indian Constitution provide just and humane condition at work place wherein menstruation shall be a valid condition for which provisions shall be provides. Hence females may be allowed to take menstrual leaves as a part of Article 14 of the Indian Constitution

Recently, Dharmashastra National Law University, Jabalpur held a milestone by allowing female students to take leaves during menstrual cycle as per a circular on 29/09/23. If in case a female student has missed any class due to menstruation, they may be compensated for the same. Such leave shall be approved by the leave in the office. The move was taken after the Students Bar Association had requested for the same in 2022-23

Currently, no such law or rule provides any provision or any privilege towards menstruation or menstrual cycle moreover, it was considered to be an unclean and unhygienic topic and not to be brought in parliamentary front. But certain acts and bill can expressly provide Menstrual leave or laws which may relieve women during menstruation.

Such acts may include:
  1. Factories Act 1948- Section 79 Factories Act provides for leave with wages for employees working for 240 days or more. Women shall be provided special leaves during menstruation. In order to provide healthy environment and safety conditions such laws shall be made for women. Section 75(b) Factories Act also signifies that an employee who is unfit may not be permitted to work until he/she is fully fit. Menstruation can be such state of health issue for females.
  2. Employees State Insurance Act- specifically provides security benefits and for such benefit, Menstruation may be a valid reason.
  3. Companies Act- Schedule (vii) part (iii) of Companies Act guides that Corporate Social Responsibility shall empower women and in order to empower, they shall also be given leaves when they are unwell and cannot be productive like menstruation and shall also provide sanitary pads and other sanitary facilities to women.

Scenario Menstrual Leave and menstrual hygiene outside India
Many countries have accepted period as a vulnerable issue suffered by females and have taken steps in order to indemnify the same. Such shall be beneficial health and sanitation of women. It has also improved the productivity and health of women in such countries

In Japan, a female may take leave for 2 days in a month in case they have menstrual cycle or such symptoms similarly, South Korea provides 1 day per month leave w.r.t menstruation or related symptoms. Similarly, Taiwan provides 3 day menstrual leave per month to female employee for which they may need not to give reasons for

Scotland has become the first country to provide free tampons and sanitary pads to females in 2020 as approved by the parliament. Similarly, in year 2020, France provided free Period products to menstruating women.

Kenya and South Africa took major steps by removing tampon tax and provided free period products and sanitization products to the school girls. They also provided free sanitary pads to the females of the country.

Many companies also have taken steps towards menstruation and have provided menstrual leave or any other benefit due to menstruation. Zomato has brought no question policy wherein 2 leaves taken by female won't be questioned and Swiggy provides 10 days a year leaves to women as menstrual leave. A Mumbai based company started giving leaves to women on first day of menstrual cycle.

On Woman's day, Vistara provided free sanitary pads to women passengers in the flight, Lunette; A Finland based company provided menstrual cups to women which are biodegradable and hygienic in nature.

Menstruation in India is considered to be a prohibited issue to discussion as it is considered to be an unhygienic issue and a female issue. There is an urgent need to bring these issue in legislation front and make strict rules for such issue.

Government should also provide free pads and tampons to women and urgent menstrual leave in order provide adequate relief to women and improve productivity as well. Although menstruation has been greatly recognized in India but heavy steps are the need of the hour against such issue

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