Food delivery service Zomato has been lauded, both in India and internationally, for introducing a “period leave” policy for women. While the move is to be welcomed as a positive development in addressing the stigma that is often associated with menstruation at the workplace and Indian society at large, the question arises as to whether companies like Zomato should have the discretion to grant women period leave at all.

While much of the language used by Zomato CEO Deepinder Goyal in the statement introducing the policy is inclusive, his “word of necessary advice” for female employees stands out:

  “These leaves should only be availed if you are really unable to attend to work… Do not abuse these leaves or use them as a crutch to take time out for other pending tasks. Take care of yourself – regular focus on fitness and diet has a positive impact on every bit of your physical and mental health.”  

The italicisation of the word “really” indicates that the threshold for availing period leave is not met when women are not able to attend work. They must prove to Human Resources that they are “really” unable to attend work – what “really” means in this context is anyone’s guess.

Goyal seems to be warning the women who work at Zomato to not misuse this policy that he has so generously instituted. Do not use the policy as a “crutch”, he says, and asks the women who work at Zomato to “take care” of themselves by exercising and eating well. Ensure you are physically and mentally healthy, and you will not suffer from menstrual cramps or pain, seems to be Goyal’s prescription.

Goyal’s understanding of how menstruation works is deeply problematic and highlights how men, who have no uterus and have never had a period, should generally refrain from dispensing advice on how women can take better care of their bodies. The time has come to take the decision to grant menstrual leave out of the hands of men like Goyal. The time has come to seriously consider introducing a law that makes it mandatory for employers to grant women menstrual leave.

No uniform leave policy

Before proceeding, it is important to note that India’s labour laws are complex and myriad. Public sector and private sector establishments are regulated by the Central or state government depending on the nature of the business they are engaged in and the number of people these establishments employ. There are currently over a 100 state and 40 Central laws regulating everything from industrial disputes to working conditions. There is no uniform leave policy across these statutes, with each state enacting a “Shops and Establishments” Act to legislate on issues of leave.

As far as Zomato is concerned, employees in their Gurgaon offices are entitled to one day of earned leave for every 20 days worked under the Punjab Shops and Commercial Establishments Act, 1958. They are also entitled to seven days of sick leave in a year. With the introduction of the new period leave policy, women who work at Zomato will now be entitled to 10 days of period leave in a year, though they can only avail one day of period leave per menstrual cycle.

Zomato employees in Bangalore, who will be governed by the Karnataka Shops and Commercial Establishments Act, 1961, are entitled to the same number of earned leaves as their counterparts in Gurgaon. However, they are entitled to 12 days of sick leave in a year. Thus, women who work at Zomato’s Bangalore offices will be entitled to avail 10 days of period leaves and five extra sick leave days more than their female colleagues in Gurgaon.

In Maharashtra, there is no sick leave under its Shops and Establishments Act but there is a provision for eight days of casual leave, in addition to earned leave. For Zomato’s female employees in Mumbai, the period leave policy should come as a welcome relief.

A wall in Guwahati. Credit: David Talukdar/AFP

That being said, for women who do not work at Zomato or at an establishment that grants menstrual leave, they have no option but to utilise their sick leave on days when they are suffering from pain/cramps/fatigue caused by menstruation. Thus, once there is a political consensus that women should have the right to menstrual leave, there is a pressing need for a law passed by Parliament to ensure that women across states and across establishments, whether public or private, are entitled to the same number of period leave days.

The Right to Menstrual Leave

In 2017, Congress Lok Sabha MP Ninong Ering introduced “The Menstruation Benefits Bill, 2017”. Under the Bill, women employed by both public and private establishments registered with the Central and/or state governments, would have been entitled to two days of menstrual leave every month, which would amount to 24 days of leave annually. The Bill went far further than Zomato’s policy of 10 days of period leaves per year.

While the exact number of menstrual leave days that should be granted is up for debate – Zomato’s rationale is that women on an average have 14 menstrual cycles in a year, and once the probability of a period occurring over a weekend is taken into account, 10 days’ leave is optimal – a more fundamental issue needs to be addressed first: why should women have the right to menstrual leave?

Journalist Barkha Dutt sparked Twitter debate when she said, “Sorry Zomato, as woke as your decision on #PeriodLeave is, this is exactly what ghettoizes women and strengthens biological determinism…”

She has argued in the past that period leave is a “stupid idea”, because if she can cover a war while on her period, other women can and should work in an office while on their period. “Sure, our periods can be annoyingly uncomfortable and often painful” she said, “but this reality usually demands no more than a Tylenol or Meftal and, if needed, a hot-water bottle.”

If I can handle menstrual pain, why should the one in five women who suffer from debilitating conditions like endometriosis (tissue growing outside the uterus) which can lead to dysmenorrhea (menstrual cramps) be entitled to leave? This is the cut and thrust of Dutt’s position on menstrual leave.

Anecdotal evidence

Much of the debate on menstrual leave is fuelled by anecdotal evidence, and as a man, the most you can do when taking a position on whether women should have the right to menstrual leave is speak to the women in your life. My wife, who runs her own business, suffers from intense menstrual cramps. Should she not be entitled to take a day off when it becomes simply unbearable to work? Or should she, like Dutt seems to suggest, grin and bear it because her office isn’t a warzone?

Dutt does concede that if a woman must take a day off, she can do so by availing sick leave. But, as demonstrated earlier, women across India are not entitled to the same number of sick leave days. A woman working in Gurgaon who experiences dysmenorrhea is at a disadvantage when she has used up her seven sick leave days, as compared to a woman in Bangalore who is entitled to 12 sick leave days every year.

Dutt also expressed concern that a right to menstrual leave will give employers another reason to discriminate against women workers and can be counterproductive when female participation in the workplace has fallen sharply over the years, and is at just 23.3%. The global experience suggests that linking female participation in the workforce to menstrual leave is tenuous at best. In patriarchal Japan, which has had a menstrual leave policy since 1947, women constitute 44.5 % of the workforce. South Korea also has a menstrual leave policy and women make up 42.1% of the workforce.

While one cannot, by any stretch of the imagination, argue that these countries’ menstrual leave policy is behind such high female participation in the workforce – Korean women generally hesitate to avail period leave – it can be said that the menstrual leave policy has in no way impacted the hiring of women. Thus, while Dutt’s concerns certainly need to be addressed, they need not stand in the way of, as lawyer Karuna Nundy’s put it, “a conversation on how to tailor a sensitive law, that includes women workers who suffer from diseases like endometriosis, gynaecologists and gender educated policy makers…”

A constitutional obligation

Such a conversation took place three decades ago in Bihar, where female government employees have been given two days of special casual leave for “biological reasons” since 1992, over and above the leave that they and their male counterparts are entitled to. At this juncture, a facetious argument that is often mounted against the granting of menstrual leave deserves a mention. Since Zomato’s announcement, some men on social media have claimed that a menstrual leave policy is discriminatory.

The question that arises then is this: if a Bill along the lines of the Menstruation Benefits Bill, 2017 mandating menstrual leave is passed, would it be constitutional? Under Article 42, which is found in Part IV of the Constitution dealing with the Directive Principles of State Policy, the state is mandated to “make provision for securing just and humane conditions of work and for maternity relief.” Under Article 15, although there is a bar on discrimination only on grounds of sex, clause 3 of the Article authorises the state to pass laws making any special provision for women. Thus, the passage of a law by Parliament recognising the right to menstrual leave will not only be constitutional, but a fulfilment of the State’s obligation under the Constitution.

One final facetious argument is that women will “misuse” these leaves, a concern that Zomato CEO Goyal seems to share. As men, the least we can do is give women the benefit of the doubt and not second guess whether they are “really” unable to work. The Menstruation Benefits Bill, which never saw the light of day and has now lapsed, sought to address this issue by stating emphatically that “every woman shall have a right to self-perception of her menstruation”.

The women who have benefitted from the Bihar government’s policy to grant menstrual leave maintain that their self-perception of their menstrual pain was never questioned, and they have routinely availed of such leaves without facing any issues. But what about their male colleagues? How do they feel about menstrual leave? As one Bihari woman put it, “Those men who make sexist comments or indulge in harassment need no excuse to do so.”

A certain section of the male population will always oppose any law intended to favour women, whether it be dowry, property rights or menstrual equity. The mandating of menstrual leave might well lead to sexist remarks by men and speculation as to whether women are “faking it”. Men will be men, right? Well, let them be – that’s no reason to deny women the right to menstrual leave.

Abhishek Sudhir is a practising lawyer and founder of Sudhir Law Review, a legal education website. He vlogs at vakalat_nama.