Client Bulletin #542
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Employers of 50+ Employees Now Required to Provide Domestic Violence Leave
Massachusetts employers of 50 or more employees must permit employees to take up to 15 days of domestic violence leave in any 12-month period. Employees who are victims of abusive behavior, or whose family members are victims of abusive behavior, may use this leave in order to
• seek or obtain medical attention, counseling, victim services or legal assistance
• secure housing
• obtain a protective order from a court
• appear in court or before a grand jury
• meet with a district attorney or other law enforcement official
• attend child custody proceedings, or
• address other issues directly related to the abusive behavior against the employee or family member of the employee.
• "Abuse" means 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, or 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.
• "Abusive behavior" means behavior constituting domestic violence (see below); stalking; sexual assault, and kidnapping.
• "Domestic violence" means abuse against an employee or the employee's family member by a current or former spouse of the employee or the employee's family member; a person with whom the employee or the employee's family member shares a child in common; a person who is cohabitating with or has cohabitated with the employee or the employee's family member; a person who is related by blood or marriage to the employee; or a person with whom the employee or employee's family member has or had a dating or engagement relationship.
• "Family member" means persons who are married to one another; persons in a "substantive dating" or engagement relationship and who reside together; persons having a child in common regardless of whether they have ever married or resided together; a parent, step-parent, child, step-child, sibling, grandparent or grandchild; or persons in a guardianship relationship.
Notice Of Leave
Employers can choose whether the leave is paid or unpaid, and may waive the statutory requirement that employees first exhaust their vacation, personal or sick leave before taking domestic violence leave. An employee seeking leave from work under this section must provide appropriate advance notice of the leave in accordance with the employer's policy unless the situation involves imminent danger to the employee or the employee's family member, in which case no notice may be required.
In the case of a scheduled absence, the employer has the right to request documentation from the employee, which the employee must provide within a reasonable period after the request. The employee can meet the employer's documentation requirement by providing one of the following:
• a protective order, order of equitable relief or other documentation issued by a court of competent jurisdiction as a result of abusive behavior against the employee or the employee's family member;
• 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 against the employee or the employee's family member;
• a police report or a statement of a victim or witness that was provided to the police, including a police incident report, documenting the abusive behavior complained of by the employee or the employee's family member;documentation that the perpetrator has admitted to sufficient facts to support a finding of guilt of abusive behavior; or been convicted of, or adjudicated a juvenile delinquent, because of an offense constituting abusive behavior and that is related to the abusive behavior that created the need for the leave;
• documentation of medical treatment received as a result of the abusive behavior;
• a sworn statement, signed under penalty of perjury, provided by 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 sworn statement, signed under penalty 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.
If the employee has an unauthorized absence, he or she can satisfy the employer's documentation requirement by providing one of the above forms of documentation to the employer within 30 days of the unauthorized absence or, in the case of a multiple-day absence, within 30 days of the last day of the multiple-day period of absence. If the employee provides the documentation within this time frame, the employer may not take any negative action against the employee. An employer may not require an employee to show evidence of an arrest, conviction or other law enforcement documentation.
All information received by employers related to domestic violence leave must be kept confidential (except for disclosures specifically permitted in the statute), and any documentation received by an employer in support of the need for leave may be maintained only for as long as required for the employer to determine whether the employee is eligible for leave.
Covered employers must inform all employees of the rights and responsibilities provided by the domestic violence leave law. The employee is entitled to all benefits that accrued as of the date that the leave was taken, and the employee has the right to restoration to his or her original position, or to an equivalent position. Retaliation based on an employee's exercise of rights under the law is prohibited. It is also a violation for an employer to base an employment action on whether the victim maintains contact with the alleged abuser.
The law, which took effect in August, is enforced by the Attorney General.
About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.
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