Massachusetts Provides Job-Protected Leave for Domestic Violence Victims
Posted on: Monday, January 12th, 2015
On August 8, 2014, Governor Deval Patrick signed an “Act Relative to Domestic Violence” into law. See G.L. c. 149, § 52E (2014). The law provides employees, who are victims of domestic violence, a right to take leave from work without fear of discrimination, retaliation or termination. The law applies to employers of fifty or more employees.
Specifically, the law says that employers may not interfere with an employee’s right to domestic violence leave – except to require sufficient notice and documentation. The employer may not discriminate or retaliate against an employee for exercising such a leave. The Act further imposes upon employers the duty to restore employees to the employee’s original job (or an equivalent position) upon return from leave.
The law requires employers provide fifteen (15) days of unpaid leave in a 12-month period to employees who are victims of, or whose family members are victims of, “abusive behavior.” The employer has sole discretion whether any leave taken under the Act shall be paid or unpaid.
Under the Act, “abusive behavior” is defined as domestic violence, stalking, kidnapping or sexual assault.
“Domestic violence” is defined as abuse against an employee (or the employee’s family member) by: (1) a current or former spouse of the employee or the employee’s family member; (2) a person with whom the employee or the employee’s family member shares a child; (3) a person cohabitating with or has cohabitated with the employee or the employee’s family member; (4) a person either blood or marriage related to the employee; (5) or a person with whom the employee or employee’s family member has or had a dating or engagement relationship.
“Abuse” is defined as: (1) attempting to cause or causing physical harm; (2) placing another in fear of imminent serious physical harm; (3) 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; (4) engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; (5) depriving another of medical care, housing, food or other necessities of life, or restraining the liberty of another.
Furthermore, “family member” includes: (1) persons who are married to one another; (2) persons in a “substantive dating” or engagement relationship and who reside together; (3) persons having a child in common regardless of whether they have ever married or resided together; (4) a parent, step-parent, child, step-child, sibling, grandparent or grandchild; or (5) persons in a guardianship relationship.
Employees looking to utilize this law to take leave must properly allege reasons related to the abusive behavior to their employer, including the following:
-Seeking or obtaining medical attention;
-Seeking or obtaining counseling, victim services, or legal assistance;
-Meeting with a district attorney or other law enforcement official;
-Obtaining a protective order from a court;
-Appearing in court or before a grand jury;
-Attending child custody proceedings, like child welfare cases, or addressing other issues directly related to the abusive behavior.
Employers may require that employees seeking leave give “appropriate advance notice” pursuant to the employer’s leave policy. This, of course, may seem impracticable for an employee in this type of situation. Thus, the Act provides that “if there is a threat of imminent danger,” the employee shall not be required to provide such advanced notice. However, within three (3) workdays of taking the leave, the employee must properly notify the employer pursuant to the Act.
The Act also requires stringent documentation from the employee seeking leave. An employee satisfies the documentation requirement by providing any one of the following documents: protective orders or other documentation issued by a court of competent jurisdiction related to the abuse; a police report or statement of a victim or witness, including police incident reports; medical documentation of treatment related to the abusive behavior; a sworn statement, signed under the penalties of perjury, provided by the employee or a provider addressing the effects of the abusive behavior. All information provided to the employer is required to be kept confidential. Prior to taking leave under the law, the employee must exhaust all vacation, personal leave and sick leave before requesting leave.
The Massachusetts Attorney General’s office is responsible for enforcing the Act. Additionally, employees may bring private civil actions seeking injunctive relief, lost wages and benefits. The Act incorporates the remedial provisions of the Massachusetts Wage Act, including mandatory treble damages and attorney’s fees for a successful employee.
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