Massachusetts Governor Deval Patrick signed into law An Act Relative to Domestic Violence on
August 8, 2014.This far-reaching law, which institutes reforms
throughout the criminal justice system, mandates that all public
and private employers with more than 50 employees must permit
employees impacted by domestic violence to take up to 15 days of
leave in any 12 month period. This leave may be paid or
unpaid at the employer's discretion. Employers
are not required to grant leave if the
employee is the perpetrator of abusive behavior against a family
member. Employers are specifically required to notify
employees of their rights and responsibilities under the law.
An employee will be eligible for domestic violence leave
if:
- the employee, or a family member of the employee, is a victim of abusive behavior and
- the employee is using the leave from work for purposes closely related to the abusive behavior, including obtaining medical attention or counseling, securing housing, attending court proceedings, and obtaining other victims' services.
The statute's definition of "abusive behavior" is
broad, including both physical and mental abuse. Employers
may require employees to exhaust all other available forms of
leave, including vacation, sick time, and personal leave, prior to
requesting or taking domestic violence leave.
Except where there is a threat of imminent danger, employees are
required to provide "appropriate notice" of their need
for leave. While the statute does not specifically define
"appropriate notice," employers should use the same
notice period required in their other leave policies. This notice
may be communicated by either the employee or another person acting
on the employee's behalf. If an unscheduled absence occurs, an
employer may not take any negative action against the employee if
the employee produces documentation within 30 days.
Employers can also require employees to produce documentation of
their need for leave. All documentation provided to the
employer must be kept confidential and cannot be disclosed except
as provided by statute. Additionally, this documentation may
only be retained for as long as is required for the employer to
determine the employee's eligibility for leave.
Like the federal Family and Medical Leave Act, the statute includes
anti-interference and anti-retaliation provisions which prohibit an
employer from interfering with an employee's attempt to
exercise his or her rights or "discharg[ing] or in any other
manner discriminat[ing]" against an employee for exercising
his or her rights under this section. The statute
specifically provides that the employer may
not make the employee's exercise of his or her
rights contingent on whether the victim maintains contact with the
alleged abuser. The statute also provides that upon the
employee's return from leave, the employee shall be entitled to
restoration to the employee's original job or to an equivalent
position.
The statute will be enforced by the Massachusetts Attorney General
who is entitled to seek either injunctive relief or other equitable
relief. Employees who believe their rights under this act
have been violated may also bring private actions using the same
provision as other Massachusetts wage and hour
violations.
This law does leave some unanswered questions, including whether
intermittent leave will be available and whether this leave may run
concurrently with other available leaves. It is not difficult
to conceive of a situation in which an employee, injured by
domestic violence, might simultaneously be eligible for both
domestic violence leave and FMLA or other state or local leaves.
Additionally, an employee who suffers impairment that
substantially limits one or more major life activities as a result
of domestic violence, including post-traumatic stress disorder and
other mental illnesses, might require reasonable accommodation
under the Americans with Disabilities Act.
Massachusetts employers with 50 or more employees should move
quickly to notify employees of their rights and responsibilities
under this law and update their policies to include domestic
violence leave.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.