Effective immediately, Massachusetts has joined over 20 states in enacting a domestic violence leave law. Under the new law, An Act Relative to Domestic Violence (“ARDV”) employers with 50 or more employees must provide up to 15 days of leave per 12 month period for employees and their covered family members who survive domestic violence.
Who is eligible to take domestic violence leave?
Employees and their family members who have been subject to domestic violence or abuse. “Family members” include spouses; live-in boyfriends or girlfriends; individuals with whom they have a child or children; and parents, step-parents, children, step-children, siblings, grandparents, grandchildren, or persons with whom the employee has a guardian relationship. The law ‘s broad definition of domestic violence and abuse includes everything from threats and intimidation to physical or sexual assault by (1) a current or former romantic partner; (2) a blood or marriage relative; or (3) someone living with the employee or family member.
What can the leave be used for?
Employees may take ARDV leave only to attend to issues relating directly to the abuse, including seeking or obtaining housing, medical attention, counseling, victim services, or legal assistance; appearing in court or before a grand jury; meeting with a district attorney or other law enforcement official; or attending a child custody proceeding.
What can employers require of employees taking leave under this law?
- Advance Notice. Employers are entitled to advance notice unless there is a threat continuedof imminent danger to the employee or family member. Employees who do not give advance notice must notify the employer within three workdays that the leave taken was because of domestic violence. Similar to leave taken under FMLA, employers should be aware that the request for leave may come from individuals other than the employee.
- Documentation. Employers may require documentation that the employee or family member was in fact a victim of domestic violence or abuse. Acceptable documentation includes a sworn statement by the employee or a counselor, social worker, health care worker, clergy member, shelter worker, legal advocate, or other professional; a court order or other court document; a document on court, provider, or public agency letterhead showing that the employee or family member sought assistance relating to domestic violence; a police report or statement of a victim or witness; proof that the perpetrator admitted to sufficient facts to support a finding of guilt, was convicted, or was adjudicated a juvenile delinquent by reason of such abuse; or documentation of medical treatment received as a result of abuse.
- Exhaustion of Available Paid Leave. Before taking domestic violence leave, employees must exhaust all personal, sick, annual, and vacation leave, unless the employer allows otherwise.
What does the law require employers to do?
- Notify each employee about the law. The law does not specify whether notice must be posted or distributed (like sexual harassment policies).
- Reinstate the employee to their original job or an equivalent position upon their return from leave. Make sure that they do not lose any employment benefit accrued prior to the leave.
- Do not discriminate or retaliate against employees exercising their ARDV rights. Be careful about how you treat unauthorized absences: the ARDV prohibits employers from taking action based on such absences if, within 30 days of the last absence, the employee provides documentation that the absence was due to domestic violence.
- Keep confidential all information related to the leave.
What happens if employers do not comply?
The ARDV allows the attorney general to investigate violations, provides employees the right to sue, and entitles prevailing plaintiffs to mandatory triple damages and attorneys’ fees.
What else can employers do to comply with this law and avoid liability?
- Decide whether to provide paid or unpaid leave (the law requires only unpaid leave).
- Consider adopting a policy about domestic violence that will guide both supervisors and employees and help avoid legal exposure. While the ARDV does not address how employers are to treat perpetrators of domestic violence, employers may want to consider a policy reserving the right to discipline them or refer them to an Employee Assistance Plan if their actions violate company policy (e.g., if they use company resources, like phone or computer systems to commit abuse); or if they are convicted of a crime involving domestic violence during their employment.
- Train supervisors on how to recognize and address domestic violence issues.
- Review any attendance policies for compliance with the ARDV.
Does the law benefit employers in any way?
Yes. While the law’s penalties may be alarming, the ARDV finally provides some clarity in an area of employee relations that has troubled companies for years. Prior to this law, domestic violence survivors and private employers had to navigate a patchwork of authority including the Family and Medical Leave Act, witness leave laws, employment discrimination laws, and their own leave policies in order to figure out what to do when an employee needed time off to deal with the medical, legal and custody issues that often accompany domestic violence. Although the law has some vagaries that will need to be addressed through regulation or caselaw, having established rules to handle this common problem should actually simplify the process for employers.