According to a study by the Centers for Disease Control and Prevention, domestic violence victims annually lose a total of nearly 8 million days of paid work—the equivalent of more than 32,000 full-time jobs—as a result of domestic violence. Today, more than a dozen states have enacted laws protecting victims from being discriminated against by their employers for taking leave to manage matters related to the domestic abuse.
On August 8, 2014, Massachusetts became the most recent state to pass such legislation, which was passed as part of a comprehensive package of laws titled “An Act relative to domestic violence” (“the Act”). The Act includes new protections for victims of domestic violence on both the criminal and civil sides of the law. The focus of this blog post is one key component of the Act—G.L. Ch. 149, § 52E—which allows employees who are victims or family members of a victim of abusive behavior to take leave of up to 15 days per 12 month period for purposes of medical, psychological or legal assistance, to obtain housing, or for legal matters related to the abuse. On October 28, 2014, the Office of the Massachusetts Attorney General (“AGO”) issued an advisory on the law. Highlights of the law are below.
Do all employers need to comply?
No. The law generally requires Massachusetts employers of 50 or more to provide the leave required by the Act (“Covered Employers”).
Does the law apply to all workers?
Yes. All employees, including part-time, temporary, and seasonal workers, are eligible for leave if they are employed by a Covered Employer.
What conditions must be met by an employee to qualify to take leave?
- The employee or a close family member must be a victim of “abusive behavior.”
- The leave must be taken to address issues directly related to abusive behavior such as seeking medical or counseling services, securing housing, meeting with law enforcement officials, or attending court proceedings.
May the employer request documentation to evidence the “abusive behavior”?
Though not required, an employer may request that an employee provide documentation within a reasonable amount of time, evidencing that the employee or employee’s family member has been a victim of abusive behavior. An employee can satisfy the request for required documentation by providing any one of the following documents to the employer:
- A protective order issued by a court of competent jurisdiction as a result of abusive behavior.
- A document under the letterhead of the court, provider or public agency which the employee attended for the purposes of acquiring assistance as it relates to the abusive behavior.
- A police report or statement of a victim or witness provided to police, including a police incident report, documenting the abusive behavior.
- Documentation that the perpetrator of the abusive behavior has:
- admitted to sufficient facts to support a finding of guilt of abusive behavior; or
- has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section.
- Medical documentation of treatment as a result of the abusive behavior.
- A sworn statement, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted in addressing the effects of the abusive behavior, signed under the penalties of perjury.
- A sworn statement 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, signed under the penalties of perjury.
With some limited exceptions, all information related to the employee’s leave shall be kept confidential by the employer and shall not be disclosed to third parties. Any documentation provided to an employer under the Law may be maintained by the employer in the employee’s employment record but only for as long as required for the employer to make a determination as to whether the employee is eligible for leave.
Must employees provide notice to employers prior to taking the leave?
Yes. Except in cases of imminent danger to the health or safety of an employee, an employee seeking leave must provide appropriate advance notice of the leave to the employer as required by the employer’s leave policy. In cases of threat of imminent danger, the employee, his/her family member or a professional assisting the employee must notify the employer within three (3) workdays that the leave was taken or is being taken.
How much leave must be given?
An employer must permit an employee to take up to 15 days leave from work during any 12-month time period.
Must the leave be paid?
No, the employer shall have sole discretion to determine whether any leave taken under the Law is paid or unpaid.
Does the leave pursuant to the Act need to be given in addition to other paid time off?
No. The employee must first exhaust all annual or vacation leave, personal leave and sick leave already available to the employee prior to requesting or taking leave under the Law, unless the employer waives this requirement.
Do employees who take leave pursuant to the Act have additional protections against discrimination?
Yes. An employer cannot discharge or in any other manner discriminate against an employee for exercising the employee’s rights under the Law. Upon the employee’s return from such leave, the employee is entitled to be restored to the employee’s original job or to an equivalent position.
Further, if an unscheduled absence occurs, an employer cannot take any negative action against the employee if the employee, within 30 days from the unauthorized absence or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences, provides any of the documentation required under the Law.
What are the penalties for an employer’s non-compliance with the Act?
Penalties are severe. An employer may take no unfavorable action against any qualifying employee who takes leave under the Act, provided the employee complies with the notice and documentation provisions discussed above.
The Act also creates a private right of action that allows aggrieved employees to seek equitable or injunctive relief and/or compensation for lost wages and other incidental damages. Because the civil enforcement scheme falls under the Massachusetts Wage Act, employers also face liability for mandatory treble damages and attorneys’ fees.
What steps should an employer take to comply with the Act?
The law requires that covered employers “shall” notify each employee of the rights and responsibilities provided by G.L. Ch. 149, § 52E, including those related to notification requirements and confidentiality.
As a practical matter, covered employers are well-advised to provide notice of the rights provided by the Act by way of a general notice or poster, or by adequately updating their employee handbook.