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Massachusetts is Latest State to Require Employers to Provide Domestic Violence Leave

On August 8, 2014, Massachusetts Governor Deval Patrick signed a new law that offers leave from work to domestic violence victims and their family members; so that they can take necessary steps such as getting medical attention; seeking victim services; submitting police reports; talking to attorneys, police or courts; making arrangements for child custody; etc. The Family and Medical Leave Act offers only limited leave for the specifically medical needs of the victim, but the new law recognizes many other ways in which domestic violence can disrupt the victim’s working life.

About a dozen other states have enacted similar laws. The provisions of those laws vary widely. Washington D.C.’s law is the only one that mandates paid leave. The laws vary in the activities for which leave is allowed. They also vary in the amount of time granted: some offer a set number of days, others require only a “reasonable” amount of leave, while others are silent about the length of time and only prohibit disciplining or firing employees who take time off for reasons relating to domestic violence. The Massachusetts law mandates “up to 15 days of leave from work in any 12 month period.”

The new law also specifies that, while employees can be required to provide “appropriate advance notice of the leave to the employer…if there is a threat of imminent danger…the employee shall not be required to provide advanced notice of leave; provided, however, that the employee shall notify the employer within 3 workdays that the leave was taken or is being taken under this section.” An obvious problem for domestic violence victims is that they can suddenly miss work, violate their employer’s policy regarding notice for absences, and lose their jobs. The employee will now be guaranteed 30 days to provide any required documentation to the employer regarding the reason for their absence from work.

Under the new law, an employer can require the employee to provide documentation substantiating the domestic violence. Importantly, though, the employer cannot require the employee to provide an arrest, conviction, or other law enforcement documentation; notes from doctors, admissions from the abuser, sworn statements from counselors or shelter workers, or the employee herself are sufficient. Whatever information the employee provides must be kept confidential by the employer.

Massachusetts new “Act Relative to Domestic Violence” has two important limitations. First, before taking leave, the employee is required to exhaust “all annual or vacation leave, personal leave and sick leave” that is available. (Presumably this provision is there as a disincentive to anyone who would inappropriately claim leave under the law.) A second, more worrisome limitation is that the law “shall apply to employers who employ 50 or more employees.” Lawmakers’ hesitance to impose costs on small businesses is obviously understandable, there must be hundreds of victims of domestic violence who work for businesses with less than 50 employees. Surely they should be protected as well.

If you believe your employer has violated your legal rights, please contact The Harman Firm, LLP.

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