While employees and employers are familiar with the terms "sick leave," "annual leave," and "medical leave," New Mexico is also one of several states to require employers to provide an employee with "domestic abuse leave." The Promoting Financial Independence for Victims of Domestic Abuse Act ("Act") was enacted in 2009 with the intent of allowing survivors of domestic abuse to take leave from work to attend court proceedings and other legal activities that may stem from the abuse.
The definition of domestic abuse in New Mexico is broken up into two parts. First, domestic abuse is either an incident of stalking or sexual assault, whether committed by a household member or not. Second, domestic abuse is also an incident by a household member against another household member consisting of or resulting in: physical harm, severe emotional distress, bodily injury or assault, a threat causing imminent fear of bodily injury by any household member, criminal trespass, criminal damage to property, repeatedly driving by a residence or work place, telephone harassment, harassment, or harm or threatened harm to children.
More often than not, while it may be perceived as a private issue in the home, domestic abuse has the potential to affect not only the employee at work, but the workplace as a whole. To provide some perspective, the New Mexico Coalition Against Domestic Violence reports that in 2011 there were 18,740 incidents of domestic violence reported to New Mexico law enforcement. The actual number of domestic violence incidents is most likely much higher, as many victims do not report the abuse to law enforcement. From an employer perspective, the cost of domestic abuse on the national level is estimated to exceed $5.8 billion a year, with 8 million days of paid work lost, the equivalent to more than 32,000 full-time jobs.
New Mexico's domestic abuse leave Act allows an employee time off from work to attend to the legal matters surrounding either the domestic abuse of the employee or the domestic abuse of an employee's family member. Under the Act, the leave is intermittent, paid or unpaid, for up to fourteen (14) days in a calendar year, up to eight (8) hours in one day. The employer must grant an employee leave (1) when the employee is obtaining or attempting to obtain an order of protection or other judicial relief from domestic abuse, (2) to meet with law enforcement officials, (3) to consult with attorneys or district attorneys' victim advocates, or (4) to attend court proceedings related to the domestic abuse. The designation of such leave as paid, unpaid, or compensatory, should be consistent with the employer's policies, and the employer cannot withhold pay, health coverage insurance, or any other benefits that the employee has accrued due to taking leave under the Act. Nor shall the employer include the time taken by an employee for domestic abuse leave when calculating eligibility benefits.
While an employer must grant an employee domestic abuse leave without interference, restraint, denial of rights under the Act, or retaliation, the employer may require the employee to produce verification of the need for such leave. Examples of acceptable verification include a police report, a copy of an order of protection, a court document, or a statement from the employee's attorney. In the case of an emergency, the employee or a designee needs to give the employer notice within 24 hours of the emergency.
It is imperative, and required by the Act, that the employer keep confidential the employee's use of domestic abuse leave. This includes keeping confidential the verification information, the fact that the employee or employee's family member was involved in domestic abuse, that the employee asked for domestic abuse leave, and that the employer granted the domestic abuse leave. Exceptions to the confidentiality requirement include employee consent, court order, or as otherwise required by the law.
Finally, an employer should be mindful of other relevant laws when an employee is a survivor of domestic abuse. For example, treating a female survivor of domestic abuse differently from a similarly situated employee could result in a discrimination claim. Likewise, failing to recognize disabilities that have arisen as a result of the domestic abuse could be a violation of the Americans with Disabilities Act. And, while an employee may be using domestic abuse leave for the legal issues surrounding the domestic abuse, the employee may also be eligible for leave under the Family and Medical Leave Act ("FMLA) if he or she suffered from physical or mental injuries as a result of the domestic abuse.
Due to the relative newness of the Promoting Financial Independence for Victims of Domestic Abuse Act, there is neither New Mexico case law nor regulations to help further interpret or implement this Act. Nonetheless, when domestic abuse leave is implemented in accordance with the statutes, it should prove to be beneficial for employee and employer alike.