A Pandemic and the Plight of Working Women: Is Our Legal Framework a Panacea?
Yashvi Ganeriwal

Yashvi Ganeriwal

Jan 07Feminism

A Pandemic and the Plight of Working Women: Is Our Legal Framework a Panacea?

There is no denying the fact that India has one of the lowest percentage of women participants in its labour force in the world, which is clearly demonstrated by the fact that over 3 out of 4 women in India, over the age of 15, are neither employed nor seeking work.

Several factors contribute to this alarmingly low rate of women in employment, including the low literacy rates, access to educational and employment opportunities, and a patriarchal mindset that has created a public-private dichotomy, reserving private spaces i.e. the homes for women while public spaces such as workplaces were largely occupied by men. This is the case, despite the presence of a stringent legal framework that regulates employment issues. In this article, we analyse the adequacy of the current employment law framework, especially in a post-COVID world.

The outbreak of the deadly virus has left the world in a state of tumult and majorly impacted working norms. To maintain social-distancing, most of the world including India has been working from home. However, with the efflux of time, and to salvage the massive economic crisis that we are heading towards, the Government has started relaxing lockdown measures and despite the uncertainty, one expects and hopes for a resumption in people’s work-life albeit in the context of a “new normal”.

Given the resulting financial distress on businesses/employers, cost-cutting measures have been rampant. Industries particularly dependent on human capital have seen the axe fall on employees in the form of reduction in salaries, furloughs, terminations and large-scale lay-offs. Add to this the fact that compliances under existing labour laws, especially women-centric legislations, have already been burdensome for employers, and we have ourselves an India where there is absolutely no incentive for employers to hire women at a time when they are recovering from an economic catastrophe.

Before we can delve into how this situation can be tackled, let us first understand the exact obligations on employers under labour legislations. Under the Maternity Benefit Act, 1961 (MB Act) for instance, an employer is required to provide maternity leave to women employees for 26 weeks for the first 2 children. Additionally, employees have to be paid a medical bonus, creche facilities have to be made available in establishments having 50 or more employees, employees are entitled to leave for other issues arising out of pregnancy including tubectomy surgeries etc.

Recently, the prohibition on women working night shifts in mines in India, was revoked by way of an amendment to the Mines Act, 1952. Currently, women can be engaged in night shifts in mines provided adequate facilities regarding their occupational health and safety are arranged for.

Under the various shops and establishment legislations that govern commercial establishments other than factories, women can be engaged in night shifts provided the employer obtains an exemption from appropriate authorities to this effect and adopts adequate measures to ensure safety of its women workers including providing commute, having in place an effective mechanism for redressal of sexual harassment complaints etc. Similar provisions exist for employment of women in factories, under the Factories Act, 1948, in certain states.

Women’s rights under the above mentioned statutes stem from their constitutional rights including their right to livelihood, right to dignity and right to equality and hence, are inalienable and cannot be violated. Additionally, India is bound by its obligations under international treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1981 (CEDAW), to ensure that women in the labour force are adequately protected and not discriminated against. In furtherance of these obligations, the Indian legislature has bestowed Indian employers with the responsibility to protect their female employees and the costs for achieving this, must be borne by the employer, singularly. The pressing question then is, how will employers be able to discharge these obligations effectively, in a post-pandemic ridden world?

In the absence of any governmental support, employers who are facing unprecedented economic distress, will view this as the perfect opportunity to dispel their existing female workers and will lose any incentive to hire new ones. The already deteriorating levels of female participation in the Indian economy are bound to hit rock bottom.

The solution that the government in some states has currently appointed is to suspend employer’s obligations under certain labour statutes. While such a suspension in Uttar Pradesh offers no clarity on applicability of important statutes such as the MB Act and Equal Remuneration Act, 1976, Madhya Pradesh has clarified that provisions relating to employment of women and children will continue to apply. Gujarat too has joined the bandwagon and suspended obligations under certain labour laws. Severely criticising such a move by State Governments, experts have argued that some of these reforms such as extension in working hours in factories, is likely to result in women workers withdrawing from the labour force, especially in the absence of accompanying responsibilities to ensure safety and security of women working for these extended working hours. However, as is clear, the current solutions are focused on “attracting greater foreign investment” and reviving the economy, even if this revival comes at the cost of huge disadvantage to one section of the workforce. In any case, the Indian government does not seem to be in any hurry to deploy solutions, which can counter this looming problem in a gender sensitive manner, by ensuring that the revival of the economy can occur in tandem with continued participation of women in the workforce.

One plausible solution appears to be the adoption of schemes such as the Maternity Leave Incentive Scheme (MLIS), which was first ideated by the government on November 16th, 2018. Under the MLIS, the government would reimburse employers a portion of their expenditure on obligations discharged under the MB Act. Schemes like the MLIS, if appropriately implemented, would help alleviate the burden on employers and ensure that essential rights of women workers are protected. Many countries such as Singapore and the United Kingdom, already have such schemes in place, where the cost of providing maternity care/benefits is shared between the government and private players. On the other hand, countries like Canada and Australia currently follow models where maternity benefits are entirely financed by public funds.

Another aspect that lawmakers can consider issuing greater clarity on, is the applicability of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) in the post-COVID world, where most professional interactions are to occur on web-based platforms. The POSH Act protects women from sexual harassment at ‘workplace’. While ‘workplace’ has been defined quite broadly under the POSH Act and there is judicial precedent to help argue that ‘working from home’ would fall within the ambit of this definition, there is need for a set of detailed guidelines, which can help ascertain acts and gestures in the virtual world, which would fall within the contours of ‘sexual harassment’ under the POSH Act.

Women’s participation in the workforce in India has been the result of years of struggle, and even though women are finally being able to bust the stereotype of being ‘homemakers’, women’s role as caregivers and homemakers still remains outside the purview of ‘productive work’ in India’s economy. The current situation appears to herald even darker times, with even women who managed to enter the “workforce”, now facing the possibility of rapid unemployment or a complete abrogation of their legal rights.

Among the various economic reform measures that the government seeks to promulgate, targeted reforms, which ensure that rights of women employees are adhered to, by way of adequate support to employers who provide such rights to their benefactors, are the need of the hour.