This Article is written by Shruti Kulshreshtha, from Symbiosis Law School, Hyderabad. It states the justifications and condemnations of the Menstrual Benefit Bill, 2017. It also explains the significance of menstrual benefit bill in India.
Menstruation is a monthly cycle of normal vaginal bleeding that occurs with every woman. Few women experience insignificant or mellow uneasiness during menstruation, while others experience severe and incapacitating pain which keeps them from doing their daily chores. Around 80% of women suffer from pain during menstruation but in 5%-10% women, this pain can disrupt their life for those days. In 40% of women, menstrual pain is accompanied with premenstrual symptoms such as mood swings, lack of concentration, tiredness, clumsiness, etc. This makes it difficult for most women to continue their work without taking leaves and face a hard time in performing with consistency. The Menstruation Benefits Bill, 2017 (Hereinafter referred to as ‘the Bill’) seeks to address this problem.
The objective of the Bill
India has gained momentum in demanding better labour laws in the country to facilitate a better working environment for employees, especially females. Menstruation leave has been one of the primary demands for providing paid leave to women during menstruation. Also, females demand resting periods or breaks during menstruation and appropriate resources to foster a healthy workplace for women. There is an upsurge in the media and civil society organizations in addressing the difficulties associated with menstruation as well as campaigns and petitions for menstrual leaves.
The concept of menstrual paid leaves originated in World War II-era where people realised the need to address this issue. There are many countries that have allowed paid leaves for women during menstruation such as Taiwan, South Korea, Japan and Indonesia. Italy has proposed a paid menstrual leave bill. In fact, an all-girls school in Kerala has granted menstrual leave to the students since 1912. Corporates like Nike and Toyota have implemented a menstrual leave policy in their company and many Indian companies are also considering the same. The University College of London conducted research which stated that menstrual pain can be “as bad as having a heart attack”. Different women respond to the pain and uneasiness very differently, depending upon their capacity to bear such difficulty. However, women are expected to perform with consistency, despite the biological complexities attached to them. Hence, supporters believe that women have the right to avail additional leaves for menstruation.
Considering this situation from the employer’s point of view, it is believed that women are unproductive during menstruation and tend to commit mistakes or slow down their productivity. This happens during the 1st and 2nd days of the menstrual cycle due to the discomforts of menstruation. Hence, an employer may circumvent this hardship by allowing leaves. This will prove to be fruitful to the employer in terms of productivity and develop a satisfied employee.
Important provisions of the Bill
Ninong Ering, a Lok Sabha Member of Parliament from Arunachal Pradesh, moved a private members’ bill in 2017 named as the Menstruation Benefits Bill. It is a bill to provide facilities to female employees at the workplace during menstruation and matters connected therewith. The Bill sets out a gender-sensitive labour policy.
Applicability of the Act
Section 2 of the Bill deals with the Application of the Act. It states that the Act applies to:
- Every establishment, that is, a factory, mine or plantation, whether it is owned by the Government or not. This also includes establishments where employees exhibit equestrian, acrobatic and other performances.
- Every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months.
- Self-employed persons and those working in the unorganized sector have less than 10 employees.
Right to Menstrual Leave
Section 4 is the crux of the bill. This section permits paid leave to women during menstruation. A woman, who is an employee in any registered establishment or any woman who is a student in or above Class VIII, is entitled to a 4-day paid leave or leave from the school during menstruation. However, if a woman wishes to opt-out of this paid leave and instead desire to work, she can do so, which will make her entitled to an overtime allowance at the prescribed rate.
Other Rights under the Bill
Section 5 of the Bill enables every woman working in an establishment to have a 30-minute rest period twice a day during her menstruation. However, such rest periods cannot exceed 4 days in a particular cycle. The Bill also states that every establishment having 50 or more employees shall have a creche facility, either separately or with other facilities. It is the duty of the establishment to inform the woman about these benefits in writing or electronically, during her initial appointment in the establishment.
Section 8 provides for the recognition of menstruation. It provides that every woman has the right to self-perception of her menstruation in order to avail the benefits under this Bill. If a woman faces any kind of difficulty in utilising the benefits available to her under this Bill, then she can approach the Internal Complaints Committee constituted under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or any other similar Grievance Redressal Committee instituted in the establishment to seek redressal pertaining to menstrual benefits.
Section 10 of the Bill prescribes the punishment for non-adherence of the provision stated under the Bill. Whoever:
- Denies menstrual leave to a woman
- Obstructs a woman from availing menstrual leave
- Denies rest period or recreation facility mentioned under the bill,
Constitutes an offence under the Bill. The Bill provides such a person is punishable with imprisonment for a term not less than 1 month, which may extend to 3 months and with fine, not less than ten thousand rupees which may extend to fifty thousand rupees.
Why is Menstrual leave significant
A media company, Culture Machine, introduced a menstrual leave policy by giving 1-day menstrual leave per month to the female employees of the company. Another media company, Gozoop, also did the same. It is pertinent to note that both of these companies are Indian companies thereby implicating that the corporates of the country have started taking measures to nurture a healthy working environment to its employees and to be gender-specific in assuring labour laws to its employees. Even the State of Bihar has 2-day leave for women for the purpose of menstruation categorised as ‘Special Casual Leave’. All these are precedents for the nation to iterate that menstrual leaves are not an impossible step in India.
Menstruation is a perfectly natural biological process, which in fact ensures that a woman’s body is healthy. However, it is accompanied by discomfort and severe pain. The uncomfortable symptoms include nausea, fever, weakness, lack of concentration, tiredness, reduced emotional control, etc., which definitely puts an impact on the performance of a woman. Some women condition is chronic to an extent where they nearly pass out from it. This requires recognition by the Government so that even the female employees feel valued. It is true that not all women experience this pain and discomfort, but the majority of them do, which is significant for the government to make a policy decision.
A research study on Dysmenorrhea stated: “Dysmenorrhea (painful periods) is extremely common, and it may be severe enough to interfere with daily activities in up to 20 percent of women. One could also talk about the typical stereotypes that are associated with women and ask if the contention regarding ‘Menstruation’ would be the same if men had it too”.
A company that values the needs of its employees produces satisfied employees thereby increasing the efficiency of the company as a whole. Hence, a Menstrual benefit bill will also benefit the employer in the long term. The government needs to build a system of gender equity in the country and this bill is a stepping stone towards it. This will enable inclusivity and growth.
Objections to the Bill
Although there are numerous reasons for the introduction of the Menstruation Benefits Bill, the government is reluctant to pass the bill because of the condemnation concerning the bill, some even by women themselves. There have been many debates concerning whether the bill should be passed or not, and opposers have put forth some necessary issues to consider. Let us consider all the objections raised against the implementation of the bill:
- Hampering inclusivity: The bill can prove to be a misguided attempt to attain inclusivity of women since it will mean 4 days less of women at the workplace. This can be detrimental to women as they can miss out on important meetings, decision making and lag behind in her own work. Priyanka Chaturvedi, the spokesperson of Congress, explained that women’s participation cannot be ensured by creating exclusive policies, rather by inclusive policies to enable them to fit in. The demand should be for equal opportunities and not for concessions due to biological differences.
- Gender Bias: A section of women believe that such a law would expose them to unfair treatment at the workplace. This law can give rise to gender bias in the hiring process as companies will prefer men over women since it will be a mandate for the company to give a higher number of leaves to women. Even if they are hired, women can face slower promotions, lesser participation and lesser pay as compared to their male counterparts. At the extreme, it can lead to their alienation at work.
- Menstruation as a sickness: The bill defeats the paramount motive of the demands of women, which is to consider menstruation as a natural biological process. The provisions of this bill make people believe that menstruation is a sickness or disease for which women require leaves. This will provoke the age-old taboo related to menstruation instead of removing it.
- Not a universal problem: All women have distinct harmonic structures which means that different women face menstruation in a different manner. Some women might not suffer from any of the difficulties associated with menstruation while others might experience it in a very severe manner. Hence, a woman not having any ill-effects of menstruation could avail the menstrual leave if it is mandated by the law. Most women are capable of performing their jobs at full capacity during menstruation.
- Other options: There are many other options that can be implemented by the government instead of the ones mentioned in the bill. Companies can provide a work-from-home for a day or two to women during menstruation. This will not compromise on their work and will also consider their health issues. The companies that cannot provide work from home, can give 1 day leave instead of 4 days. Opposers suggest that it would be more feasible if the government can lower the taxes on sanitary napkins and increase their accessibility by making them affordable to women.
The intention of the makers of the Menstruation Benefits Bill is definitely pragmatic, however, they can have the opposite implications of what is intended. Menstruation is not a choice that women make each month. So, if a woman experiences difficulties, she should be allowed to take leave. On the other hand, if this rule is mandated and forced on the companies then it might have some negative impact also since it bears the punishment for violations of the provisions of the bill. The benefit of leave can be misused by employees defeating the purpose of the benefit provided to them. There are many other measures that can be taken by the government to ensure gender equity, such as making the workplace gender-sensitive and more inclusive, understanding the situation of a menstruating woman and giving her breaks when she needs, making sanitary napkins available at the workplace, separate toilets for men and women, proper disposal of sanitary napkins. Menstrual leave policy can prove to be effective but alongside these measures should also be taken. Reducing the number of leaves during menstruation and giving the option of work from home can be helpful.
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