Victims of Domestic Violence and Their Family Members Now Entitled to Leave

Victims of Domestic Violence and Their Family Members Now Entitled to Leave

Effective August 8, 2014, employees who are victims of domestic violence are entitled to take up to 15 days of unpaid leave within a 12 month period.  The new leave provisions also apply to employees who are covered family members of domestic violence victims.  The leave requirements apply to employers with 50 or more employees.  Covered employers must also notify employees of their rights and responsibilities under the new law.

This statute is considered emergency legislation, which means it went into effect as soon as the Governor signed the bill.  Both public and private employers are covered by the amendments in this bill, which is available at https://malegislature.gov/Laws/SessionLaws/Acts/2014/Chapter260

The bill creates a new statute, Mass. Gen. L. ch. 149, s. 52E.  The following are key provisions of this new statute:

  • The statute extends protections to family members of the victim, which includes husbands and wives, those in a “substantive” dating or engagement relationship and who live together; persons having a child in common regardless of whether they have ever married or lived together; a parent, step-parent, child, step-child, sibling, grandparent or grandchild; and guardians.
  • The statute applies to all employees, regardless of how many hours they work in a week, and there is no waiting period for eligibility: employees are eligible for this leave beginning on their first day of employment.
  • Victims of domestic violence and their covered family members are entitled to leave if the employee is using the leave from work for any of the following reasons: to seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; to obtain a protective order from a court; to appear in court or before a grand jury; to meet with a district attorney or other law enforcement official; or to attend child custody proceedings or address other issues directly related to the abusive behavior against the employee or his/her family member.
  • The alleged perpetrators of domestic violence are not entitled to leave under this statute.
  • Employees who take domestic violence leave must exhaust all personal, sick, annual, and vacation leave before they can take any unpaid leave, unless company policy provides otherwise.
  • Employers are entitled to advance notice of the employee’s need for leave unless there is a threat of imminent danger to the health or safety of the employee or a covered family member   An employee who does not give notice must notify the employer within three workdays that the leave was being taken under the Act’s leave provisions. Notice can also come from counselors, social workers, health care workers, clergy, shelter workers, legal advocates or another professional who has assisted the employee in addressing the effects of the abusive behavior on the employee or the employee’s family member.
  • Employees who need to take an unscheduled absence for reasons protected under this Act have 30 days to provide proof of their need for leave to their employer.  Employers are not permitted to take any adverse action against an employee who claims protection under this statute unless the employee has not furnished acceptable proof by the end of that 30 day period.
  • Employees may be required to provide proof of their eligibility for this leave even when they request the leave in advance within a “reasonable period of time.”
  • Acceptable proof can take the form of  a protective order or other court documentation; a statement from a provider or public agency that supports the need for leave, a police report or victim or witness statement; documentation of the result of court proceedings against the perpetrator of the abusive behavior; medical documentation of treatment for the abuse; a sworn statement from a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior; or a simple sworn statement from the employee attesting that he/she has been the victim of abusive behavior or is the family member of a victim. Any sworn statement used to prove eligibility must be signed under the penalties of perjury.
  • Employees who take leave under the new law cannot lose any employment benefit accrued prior to the date on which the leave was taken and are entitled to be restored their original jobs or to an equivalent position. Employers may not retaliate against an employee who exercises his/her rights under this new law.

In addition to giving the authority to the Attorney General to enforce the terms of the new statute, the Act also gives employees a private right of action, including the right to mandatory treble damages if a violation is proven. The protections in this new Act are in addition to protections already available to victims or witnesses who have been subpoenaed to appear in court proceedings and who provide their employers with advance notice or who testify in criminal proceedings.

Employers who are subject to the Act are required to notify employees of their rights and responsibilities under the law. This means that employers must develop and circulate leave policies that include the domestic violence leave provisions. Employers are encouraged to update their handbooks and/or develop a policy surrounding this new type of leave of absence.  Skoler Abbott will be developing a model policy for employers to include in their handbooks and post with their other labor law posters.  For further information on this statute, contact any of the attorneys at Skoler, Abbott & Presser, P.C.

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