Earlier this month, Massachusetts governor Deval Patrick passed a law giving a range of protections to victims of domestic violence and changing the way the state’s justice system deals with certain aspects of this problem. Part of “An Act relative to domestic violence” covers employers with 50 or more employees, requiring them to grant workers who are victims of domestic violence or have family members who are victimized up to 15 days of unpaid leave in the course of a 12-month period to deal with abuse-related matters.
With its new law, Massachusetts joins around 20 other states and numerous municipalities that will require employers to give those workers dealing with the trauma of domestic violence time away from work. Complying with the new leave laws proliferating throughout the U.S. takes thoughtfulness on the part of companies—but considerations for employees who have suffered or are suffering domestic abuse go beyond just leave.
“It’s something that implicates a lot of areas that employers might not necessarily be thinking about, including workplace safety, what leaves may be available and what accommodations they may need to provide,” Amber Elias, a Boston-based attorney with Fisher & Phillips, told CorpCounsel.com
Domestic violence leave laws vary in the amount of time off they grant, notice requirements and other factors. Some jurisdictions, like Connecticut and Washington, D.C., for example, even mandate paid leave. New York State law goes as far as to make domestic abuse victims a protected class.
The Massachusetts law, like many other domestic violence leave laws, requires that the employee provide some sort of proof—like a court record, a medical record or a record from social services—to show that they were in fact out of work for a domestic violence-related reason. In most cases, the employee will have to provide advance notice about their absence. If any employee has an unauthorized absence, they have 30 days to provide documentation proving that the absence was due to domestic violence. On the employer side, besides granting the leave, companies will have to keep information about the employees’ abuse confidential and make sure that they are informed and educated about the new law.
Diane Saunders, shareholder in Ogletree Deakins’ Boston office, told CorpCounsel.com that some uncertainty still exists in some areas of the law—including the nature of “intermittent leave” allowed under the new statute and just how much advance notice is required before leave. However, she does not believe it will be too burdensome for employers to comply overall.
“They just need to incorporate policies to notify employees of their rights to domestic violence leave the same as they do other types of leave,” Saunders said. This may be done through posters displayed in the office, and through training of HR and supervisors.
Beyond the leave laws sprouting up in Massachusetts and elsewhere, there are areas of federal law that might encompass abuse victims as well. A severe illness or injury that happens as a result of domestic violence could result in coverage for the employee under another leave law—the Family and Medical Leave Act, which provides for job-protected and unpaid absences of up to 12 work weeks within a 12-month span. It’s unclear whether time off under the state law, at least in Massachusetts, would count as part of federally mandated leave or count separately.
If the harm done to an employee through domestic violence rises to the level of a disability, the Americans with Disabilities Act might come into play. The ADA both provides discrimination protection and may require certain job accommodations for those who are suffering from abuse-related disabilities.
Employers should note that both the ADA and FMLA apply not just to physical disabilities, but to longer-term psychological problems faced by employees as well. “It’s one thing if the person is in the hospital and is in a cast, or it’s something very visible—but an employer should also be aware that employees may be suffering from an impairment that is not so visible,” said Elias.
Workplace safety can also become an issue, as in some scenarios in which an employee’s abuser decides to approach them in the workplace, through disruptive phone calls or even showing up in the office. This can occasionally put the whole workplace, not just the abuse victim, in danger. In such cases, Elias explained, it is “worth considering” changing locks at the workplace or giving an employee a new phone number.
It can be challenging for employers to know exactly how to treat an employee who they suspect may be the victim of domestic abuse. Sometimes troubles with work mean troubles at home, and employers might hesitate to broach sensitive topics with employees. “If someone is having an absenteeism problem, employers should document that,” said Elias. “But before you fire that person outright, we always advise employers to have a conversation with the employee and at least try to figure out what’s going on.”
Although there’s no liability involved with a company not having a policy on how it treats domestic violence victims, if a company wants to dig deeper and create a policy, the American Bar Association may be able to provide some helpful guidance. A “Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking” was adopted by the ABA recently, and serves as an example for companies to follow.