Mandate for Change
New Law Requires Employers to Provide Domestic-violence Leave
By KARINA L. SCHRENGOHST, Esq.
Massachusetts recently enacted new legislation related to domestic violence.
The new law, which was effective immediately when signed by Gov. Deval Patrick on Aug. 8, impacts some employers in the Commonwealth. Under this law, employers with 50 or more employees must provide up to 15 days of leave during any 12-month period if the employee, or a family member of the employee, is a victim of “abusive behavior.” This includes domestic violence, stalking, sexual assault, and kidnapping, and the employee is using the leave to: (1) seek or obtain medical attention, counseling, victim services, or legal assistance; (2) secure housing; (3) obtain a protective order from a court; (4) appear in court or before a grand jury; (5) meet with a district attorney or other law-enforcement official; (6) attend child-custody proceedings; or (7) address other issues directly related to the abusive behavior.
An “employee” is broadly defined as an individual who “performs services for and under the control and direction of an employer for wages or other remuneration.” This means that the law applies to any employee whether he or she is full-time or part-time and regardless of how many hours he or she works. There is also no requirement that an employee work for a particular period of time before becoming eligible to take leave.This means that an employee is eligible for domestic-violence leave from the day he or she is hired. An employee’s family member includes a spouse, a partner the employee resides with, an individual the employee has a child with, a parent or stepparent, a child or stepchild, a sibling, a grandparent, or a grandchild. An employee, however, is not entitled to leave if he or she is the perpetrator of the abusive behavior.
As with other leaves of absence, employees must provide advance notice of the leave. However, when there is a threat of imminent danger to the health or safety of the employee or the employee’s family member, advance notice is not necessary, and the employee must notify his or her employer within three workdays that leave is being taken due to abusive behavior. Notably, a request for leave may come from an individual other than the employee, including a family member of the employee or the employee’s counselor, social worker, healthcare worker, member of the clergy, shelter worker, legal advocate, or other professional who has assisted the employee.
Employers may require that employees provide documentation supporting the need for domestic-violence leave. Documentation that will support leave under this law includes:
• A sworn statement by the employee or a counselor, social worker, healthcare worker, member of the clergy, shelter worker, legal advocate, or other professional;
• A court-issued protective order;
• A document on court, provider, or public-agency letterhead showing that the employee or family member sought assistance relating to abusive behavior;
• A police report or statement of a victim or witness provided to police;
• Documentation that the perpetrator has admitted to sufficient facts to support a finding of guilt, was convicted, or has been adjudicated a juvenile delinquent by reason of abusive behavior; or
• Medical documentation of treatment as a result of the abusive behavior. This documentation must be kept confidential and may be maintained only as long as is needed for the employer to determine whether the employee is eligible for leave.
Upon an employee’s return from leave, the employee must be restored to his or her original job or an equivalent position without loss of any employment benefit accrued before taking leave. Employers are prohibited from discharging or discriminating against an employee for exercising his or her rights under this law. Complicating matters, an employer cannot take any adverse action against an employee for an unscheduled absence if the employee provides documentation supporting the need for domestic violence leave within 30 days from the unauthorized absence (or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences).
The good news for employers is that leave under this new law does not have to be paid. It is entirely an employer’s discretion whether the leave is paid or unpaid. Also, an employee must exhaust all of his or her vacation time, sick time, and personal days before they are eligible for domestic violence leave.
Employers must provide employees with notice of their rights and responsibilities under this new law. One step employers can take toward complying with this law is creating and implementing a domestic violence leave policy. Distributing this new policy will satisfy the requirement of notifying employees of their rights and responsibilities under this law. In addition, employees should review existing leave and attendance policies to ensure they are in compliance with the law and the new policy. Finally, employers should ensure supervisors and managers are trained to understand their obligations under this new law and how to handle requests for domestic violence leave.
As always, with new legislation comes new challenges. One of the challenges employers will face is the intersection this new law will have with other employment laws. For instance, this measure does not address whether domestic violence leave may run concurrently with other leave such as leave under the Family and Medical Leave Act. In addition, there may be times when an employee who is a victim of domestic violence needs a reasonable accommodation under the Americans with Disabilities Act. Consequently, employers would be wise to consult with employment counsel to ensure compliance with this new law and when confronted with questions related to domestic violence leave.
Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]