Legislating Menstrual Leave: Why It’s A Knotty Problem For Policymakers

The Supreme Court of India recognised that enforcing legal menstrual leave may discourage employers from hiring women.

<div class="paragraphs"><p>(Photo: Luca Bravo on Unsplash)</p><p></p></div>
(Photo: Luca Bravo on Unsplash)

In the last two months, the courts of two major economies around the world found themselves on different sides of the menstrual leave debate. On the one hand, Spain brought a law guaranteeing 3-5 days of paid menstrual leave for those with debilitating periods. On the other hand, the Supreme Court of India recognized that enforcing legal menstrual leave may discourage employers from hiring women. So, why did these countries find themselves on two such different sides of this debate?

Some of the reasons can be found in Spain’s labour market and political conditions. In Spain, the female labour force participation rate stands at 53.1% in 2021, i.e. more than half of Spain’s working-age women are in the labour force, making them a sizeable share of overall workers in the economy. Second, the prevailing lack of skilled labour makes it harder for employers to replace women with male workers in Spain, giving them a strong bargaining position. And third, women enjoy strong representation in leadership—such as the female Deputy Prime Minister, Nadia Calvino.

Spain is not the first country to offer legal guarantees for menstrual leave. Japanese law mandates that employers cannot deny leave to a woman experiencing discomfort due to her menstrual cycle since 1947. In South Korea, Indonesia, and Zambia, employers are mandated to offer 1-2 days of paid or unpaid menstrual leave per month for debilitating periods. Yet, what makes Spain’s formulation different is that the law guarantees the cost of the paid menstrual leave will be borne by the government and not the employer—effectively doing away with the most critical disincentive associated with prevailing menstrual leave formulations!

Moreover, international experience shows that even when offered, the uptake of menstrual leave is very low. A survey by the Japanese government in 2017 found that only 0.9% of female employees claimed period leave, a huge decline from nearly 26% in 1965. A similar story has emerged in South Korea, where women taking period leave declined from 23.6% in 2013 to 19.7% in 2017. The need to disclose that one is menstruating, apprehensions about judgement from male managers and colleagues, and fear of long-term bias in work assignments and promotions are all major drivers of this low uptake. 

Closer home in India, in the absence of a national framework, a few companies have introduced their own policies on menstrual leave. For instance, Zomato Ltd. introduced a menstrual leave policy in 2020 and has found that nearly 25% of their women employees have availed of the policy. The company created internal communications and messaging to shift social norms and support female staff, so that they could avail of the leave without the associated stigma.

According to UNICEF, approximately 1.8 billion people menstruate every month across the world—of which 18.6%, or 336 million, are in India. Debilitating menstrual symptoms, experienced by almost 50% of menstruating women, can create major barriers towards paid work and education, which women already find harder to access. This necessitates reimagining working conditions during menstruation in a way that balances women’s needs and employer disincentives.

So, what works, and how can we reimagine menstrual support systems in India? The answer lies in a combination of employer-led initiatives, combined with government support through fiscal measures—rather than legislation, and imposing additional costs on employers.

First, menstrual leave is only one form of support during debilitating periods. Employers can set up flexible work arrangements such as working from home, rest facilities in office premises, and allowing frequent breaks to support their menstruating employees during periods. For instance, in Vietnam, women are entitled to a 30-minute break per day during menstruation.

Second, in recognition of prevailing social norms, employers could offer confidential menstrual leave request mechanisms. Employers can also choose to offer additional monthly sick leaves to women employees, which cannot be carried over across months/quarters. This helps women in availing menstrual leaves more discreetly, and normalises menstruation as a natural process affecting employee health.

Third, employers could lead the conversation on breaking stereotypes and ending the stigma around periods through intentional actions—ranging from establishing peer support networks, to engaging male leaders, and having open or closed-door dialogue sessions in both single-gender and mixed-gender groups, in line with the company culture.           

And finally, in the absence of public funding, state-mandated menstrual leave is likely to raise the cost of employing women, thereby creating additional barriers to women’s employment. This can be particularly applicable to India, where only 32% of working-age women participate in the labour force. National or state governments could instead choose to start/expand fiscal support programmes offering free menstrual health products, upgrade women’s toilets in public spaces, schools and workplaces to improve sanitation and health outcomes, and offer subsidies to women entrepreneurs for manufacturing menstrual health management products.

The year is 2023, and we continue to debate how women should be “accommodated” in workplaces. It is time to change this narrative—let’s reimagine and restructure workplaces instead. And let’s reframe the debate—from legislating menstrual leave to one advocating for employer-led actions to safeguard the health of women employees—especially when they menstruate.

Mitali Nikore is an economist and gender policy specialist. Mannat Sharma is an economist working at Nikore Associates. Additional research was provided by Dhwani Kumar and Raunak Jha.

The views expressed here are those of the authors, and do not necessarily represent the views of BQ Prime or its editorial team.