DOMESTIC VIOLENCE LEAVE: MASSACHUSETTS EMPLOYERS OF 50 OR MORE EMPLOYEES MUST GRANT UP TO 15 DAYS PER YEAR, AS WELL AS PROVIDE WRITTEN NOTICE TO EMPLOYEES OF THEIR DOMESTIC VIOLENCE LEAVE RIGHTS

by Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com
August 31, 2014

As part of a comprehensive new Massachusetts anti-domestic violence law, employers of 50 or more employees are now required to grant up to 15 days of leave in any (rolling) 12 month period for purposes related to an employee, or an employee’s “family member”, being a victim of “abusive behavior”. “Abusive behavior” is defined in the law as domestic violence, stalking, sexual assault or kidnapping. “Domestic violence” in this context means abuse1 against an employee or an employee’s “family member” by a person to whom the employee or family member are or were engaged or married, or have a past or current dating relationship; or with whom they now or used to cohabitate, or with whom they “share a child in common”. It also includes abuse by a person related by marriage or blood to the employee.

Covered employers are also required to notify all employees of their rights and responsibilities under this new law, including what notice employees are required to give of their need for such leave, and the confidentiality requirements employers must follow. Employers who have employee handbooks and/or employment policies on their company intranet should add a new policy describing employee rights and responsibilities under this law. The policy should also be provided to new hires. It may also be advisable to post this new policy in the place that the employer posts notices to employees of other employment laws.

This new type of “abusive behavior” leave is commonly referred to as “domestic violence” leave, so I am referring to it by that term here. To be eligible for domestic violence leave, an employee need not have worked for the employer for any particular period of time, or be working any minimum number of hours per week. Before seeking domestic violence leave, though, an employee must first exhaust all his/her available vacation, personal or sick leave, unless the employer waives this requirement. Domestic violence leave does not have to be paid: the law grants employers “sole discretion” to decide whether the leave will be paid or unpaid. Upon the employee’s return from domestic violence leave, the employee must be returned to his/her original job or to an equivalent position. The taking of leave cannot result in the loss of any employment benefit the employee had accrued before the leave was taken.

If an employee or the employee’s “family member” is a victim of “abusive behavior”, leave may be taken for the following abuse-related purposes2:
  1. to seek or obtain medical attention, counseling, victim services or legal assistance;
  2. to find housing;
  3. to obtain a protective order from a court;
  4. to appear in court or before a grand jury;
  5. to meet with a district attorney or other law enforcement official;
  6. to attend child custody proceedings or
  7. to address other issues directly related to the abusive behavior.
An employee’s “family member”, is defined in this context as:
  1. the employee’s spouse;
  2. a person who lives with the employee and to whom the employee is engaged or has a "substantive dating relationship";
  3. a person who has a child in common with the employee, whether or not they have ever married or lived together;
  4. the employee’s parent, step-parent, child, step-child, sibling, grandparent or grandchild; or
  5. a person with whom the employee has a guardianship relationship
WHAT NOTICE MUST EMPLOYEES GIVE OF THE NEED FOR DOMESTIC VIOLENCE LEAVE?

An employee seeking domestic violence leave must generally give whatever “appropriate advance notice” is required by the employer's leave policy. However, if there is a threat of imminent danger to the health or safety of the employee or “family member”, the employee need not provide advance notice of the leave. In that case, though, the employee must notify the employer within three workdays that the leave was or is being taken for one of the purposes listed above. This notification may be communicated by someone other than the employee: a family member, counselor, social worker, health care worker, clergyperson, shelter worker, legal advocate or other professional who has assisted the employee in addressing the effects of the abusive behavior on the employee or “family member”.

If an unscheduled absence occurs, an employer cannot take any negative action against the employee if the employee, within 30 days from the last day of the unscheduled absence, provides any of the documentation described below.

WHAT DOCUMENTATION CAN EMPLOYERS REQUIRE OF THE NEED FOR DOMESTIC VIOLENCE LEAVE?

An employer may require that an employee provide documentation showing that the employee or “family member” has been a victim of abusive behavior and that the leave is being taken for one of the purposes described above. The employee must generally provide such documentation within a “reasonable period” after the employer requests it. However, an employer cannot require an employee to show evidence of an arrest, conviction or other law enforcement documentation for the abusive behavior. An employee can satisfy the documentation requirement by providing to the employer:
(1) A protective order, order of equitable relief or other documentation issued by a court as a result of abusive behavior
(2) A document under the letterhead of the court, provider or public agency which the employee attended to obtain assistance relating to the abusive behavior
(3) A police report, or a victim or witness statement provided to the police, documenting the abusive behavior
(4) Documentation that the perpetrator has been convicted of or has admitted to sufficient facts to support a finding of abusive behavior;
(5) Medical documentation of treatment as a result of the abusive behavior
(6) A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, clergyperson, shelter worker, legal advocate or other professional who has assisted the employee or “family member” in addressing the effects of the abusive behavior.
(7) A sworn statement, signed under the penalties of perjury, from the employee attesting that the employee has been the victim of abusive behavior or is the family member of a victim of abusive behavior.
EMPLOYER CONFIDENTIALITY REQUIREMENTS

Any such documentation provided to an employer may be maintained in the employee’s employment record for only as long as is required for the employer to determine whether the employee is eligible for domestic violence leave. All information related to an employee's domestic violence leave must be kept confidential by the employer and cannot be disclosed, unless
  1. the employee requests or consents to the disclosure in writing;
  2. disclosure is required by a court or by state or federal law;
  3. disclosure is required during an investigation authorized by law enforcement, including the Attorney General; or
  4. disclosure is necessary to protect the safety of the employee or others employed at the workplace.
RETALIATION OR DISCRIMINATION FOR TAKING DOMESTIC VIOLENCE LEAVE ARE PROHIBITED; EMPLOYEES CAN BRING SUIT FOR VIOLATIONS OF THIS LAW

Employers cannot discharge, discriminate or retaliate against an employee for exercising, or attempting to exercise, these new domestic violence leave rights. Employers also cannot make leave contingent upon whether or not the victim maintains contact with the alleged abuser. The domestic leave law will be enforced by the Massachusetts Attorney General. In addition, employees who claim that their domestic leave rights were violated can bring suit for damages incurred, including lost wages and benefits, under the same section of the Wage Act that employees use to sue for unpaid wages.
1. “Abuse” is defined as: attempting to cause or causing physical harm; placing another in fear of imminent serious physical harm; causing another to engage involuntarily in sexual relations by force, threat or duress; engaging or threatening to engage in sexual activity with a dependent child; engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; depriving another of medical care, housing, food or other necessities of life; or restraining the liberty of another.

2. Perpetrators or alleged perpetrators of “abusive behavior” are not eligible for domestic violence leave. Thus, an employee could not use this type of leave to defend himself against domestic abuse allegations.







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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com