Dear Littler: Should I Allow Leave for Domestic Abuse Affecting an Employee’s Family Member?

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Dear Littler: I am a manager at a mid-size company in Florida. An employee just asked for time off so that she can help her sister, who lives with her, deal with issues related to abusive behavior by the sister’s boyfriend. We have a leave policy in compliance with the Family and Medical Leave Act, but this does not look like a typical FMLA-covered request. What are our obligations here?  We are seeking to expand into Maine, Massachusetts, New York and New Jersey, and we want to set the stage for good policy going forward.

—Sympathetic in Sweetwater

Dear Sympathetic: Your question is timely, as October is Domestic Violence Awareness month, and time off relating to domestic violence1 is a complex area of law.  

One in four women and nearly one in ten men report experiencing domestic violence.2  Domestic abuse has long been perceived as a personal issue that employers need not address.  In recent years, however, there has been a growing recognition that domestic violence carries serious consequences that spill over into the workplace.  Perpetrators often threaten or attack their victims at work, compromising the safety of the survivors as well as their co-workers.3  Lost productivity, including through missed workdays, is another effect.  Twenty-one percent of full-time employed adults report they were victims of domestic violence, and sixty-four percent of them say their work performance has been impacted significantly.4  The annual cost of lost productivity due to domestic violence is estimated at $727.8 million, with over 7.9 million paid workdays lost per year.5  The inescapable conclusion is that domestic violence adversely affects the health, safety, and productivity of a sizeable portion of the workforce.

As a result, more and more legislatures and employers, in the U.S. and abroad, have begun to enact laws and policies to provide benefits and protections to victims of domestic violence.  Various parts of the U.S. have enacted laws that provide employees leave to address domestic violence, such as to attend court hearings, obtain restraining orders, seek counseling, or avail themselves of other victims’ services.  Sometimes these laws provide leave for employees who are assisting members of their family or household with abuse-related issues.  In addition, some of the laws extend beyond leaves of absence, requiring that employers provide other types of accommodations to victims of domestic violence.  While the passage of domestic violence-related employment laws is a continuing trend, the state and local laws differ, and there is no federal, one-size-fits-all approach. 

The bottom line: you are not alone in wondering where family members’ domestic violence-related issues fit among the complex patchwork of employment laws.  We’ll walk you through your obligations to your employee whose sister is in an abusive situation.  Because you are considering expanding your business beyond Florida and into various states in the Northeast, we will also highlight the relevant leave laws in these other jurisdictions.

National Leave Coverage

You are right to start with the Family Medical Leave Act (FMLA) in considering your employee’s request for time off.  The FMLA applies if you have at least 50 employees within 75 miles of the employee’s worksite.  The FMLA does not address domestic violence directly, but it allows unpaid time off for employees to tend to their own serious illness or medical condition or that of an immediate family member.  It is possible that domestic violence-related illnesses or injuries could trigger an entitlement to FMLA leave.  However, the statute’s definition of immediate family extends only to spouses, parents, and children, not to siblings.  Therefore, the employee’s request for leave to help her sister would not qualify for FMLA leave.   

Relevant State and Local Leave Laws in Florida

As mentioned above, while the FMLA does not explicitly address domestic violence, at least 20 states and localities have enacted laws to fill the gap.  Florida is one such state.6 The Florida law applies to employers with 50 or more employees and to an employee who has been employed by the employer for three or more months.  Assuming these threshold requirements are met, your employee is eligible to take up to three working days of leave (paid or unpaid) in any 12-month period if she or a family or household member is a victim of domestic violence or sexual violence.7  As a blood relative and someone living with your employee, the employee’s sister falls under the law’s definition of “family” and “household member.”

The leave can be used to secure the victim’s home from the perpetrator, seek new housing to escape the perpetrator, obtain treatment for psychological or medical issues, seek an injunction for protection, obtain legal assistance or social services, or prepare for court proceedings relating to the act of domestic violence.8  If your employee is helping her sister with any of these objectives, she is using the time off for an authorized purpose.

The law requires that the employee provide you with advance notice of the absence and sufficient documentation of the act of domestic violence, except in cases of imminent danger to the employee or family member’s health or safety.9  In addition, the employee is required to exhaust sick leave, annual leave, and vacation time before taking this type of leave, unless you, as the employer, waive that provision.  

Because you are located in Miami-Dade County, you should also be aware of the local family leave law, which explicitly allows absences for accessing domestic violence services or medical treatment relating to domestic violence.  The local provision, like the state law, applies to employers with 50 or more employees.  Employees are eligible if they have worked at least 90 days.  Significantly, the local measure provides up to 30 work days of unpaid time off in a 12-month period.  The ordinance covers leave for the employee or the employee’s dependent children, only, so it would not apply to the employee in question, who seeks leave to assist a sibling.

Confidentiality and anti-retaliation are key concepts of the Florida and Miami-Dade laws and most other domestic violence-related laws.  Generally speaking, information relating to the employee’s domestic violence-related leave must be kept confidential.  It is unlawful for employers to retaliate against employees for exercising their rights under the domestic violence leave law, such as through discharge, demotion, suspension, or other forms of discrimination.

State and Local Domestic Violence Leave Laws Vary

In addition to Florida, several other states and localities provide leave to victims of crimes, including domestic violence.  A few states have expansive paid leave laws that cover time off for domestic violence-related situations.  Some have both, and these provisions may or may not overlap.  As a result, employers should evaluate all leave requests carefully and assess whether the employer, individual employee, and particular situation are covered under one or more leave laws in that jurisdiction.

For now, because you mention that you might be expanding your business into Maine, Massachusetts, New York, and New Jersey, we’ll highlight the key sections of the laws in those jurisdictions.

Maine. Regardless of the size of your future operation in Maine, you must provide unpaid leave to an employee who is a victim of domestic violence or has a child, parent or spouse who is.10  Employees can take “reasonable and necessary” time off to attend court, seek medical treatment, or to pursue other services to handle domestic violence issues for themselves or an immediate family member without retaliation.  The leave is unpaid unless you have provided other paid sick leave time or personal time that the employee can use.11

Massachusetts. In Massachusetts, there are several laws that may require you to provide leave for employees facing domestic violence.

First, the Massachusetts domestic violence leave law applies to employers with 50 or more employees and provides leave when the employee or his or her “family member”12 is the victim of abusive behavior.13  Employees can take up to 15 days off – paid or unpaid – in a 12-month period for several different purposes related to the abusive behavior.  

Second, Massachusetts’ earned sick leave law applies to all employers, and the accrued sick leave may be used to address the psychological, physical or legal effects of domestic abuse committed against the employee or the employee’s child.  For companies with 11 or more employees, the leave is paid.14

Third, and more broadly, Massachusetts offers time off to crime victims who need to appear as witnesses in criminal proceedings.15 There is no explicit requirement that such leave be paid.

New York.  Several laws in New York relate to domestic violence.  Notably, the state of New York recently amended its Human Rights Law to prohibit employers16 from discriminating against employees who are victims of domestic violence, and to require employers to provide reasonable accommodations to such employees.  The law goes into effect on November 18, 2019. 

Under the new law, a “reasonable accommodation” is a reasonable amount of time off to engage in the following activities related to domestic violence: seeking medical attention or psychological counseling, including for a child who is a victim of domestic violence; participating in safety planning; obtaining legal services, assisting in the prosecution of the offense, or appearing in court; and obtaining social services.  Any absence that cannot be charged against available paid time off may be treated as unpaid leave.  Employers do not need to provide such an accommodation if the absence would impose an undue hardship.  This analysis looks at several factors, like the overall size of the business versus the number of employees and the type of operation, among others.

Prior to this amendment, New York employees were entitled to unpaid time off to participate in legal proceedings as witnesses or to seek an order of protection.17

Additionally, both New York City and Westchester County have laws relevant to domestic violence matters:

  • The New York City Earned Safe and Sick Time Act permits eligible employees18 to use their accrued leave time for safe time purposes.  Employers with five or more employees must provide paid leave, while smaller employers may provide unpaid leave.  Employees dealing with “family offense matters,” sexual offenses, stalking, or human trafficking may take leave time to obtain social services, participate in safety planning, meet with attorneys, enroll children in a new school, or take other actions necessary to restore or protect the health or safety of the employee or a family member, including an individual whose association with the employee is the equivalent of a family relationship.19 
  • The New York City Human Rights Law requires employers to provide reasonable accommodations—which may include unpaid leave time—to employees who are victims of domestic violence.20 Employers must engage in a cooperative dialogue with employees requesting accommodation and may not discriminate against such individuals.
  • As in New York City, employers in Westchester County must provide reasonable accommodations for employees dealing with domestic violence issues, including time off.21  In addition, the new Safe Time Leave Law in Westchester County takes effect on October 30, 2019.  That law requires all employers in the county to provide up to 40 hours of paid leave time in any year for safe time purposes.22 The Westchester County provision, however, does not extend leave for the purpose of assisting family members experiencing domestic violence.

New Jersey.  Further down the coast, New Jersey has a comprehensive domestic violence leave law that applies to employers with 25 or more employees.23  The New Jersey Security and Financial Empowerment (SAFE) Act obligates employers to provide employees with up to 20 days of unpaid leave in a 12-month period for various sick time purposes, for themselves or for family members.24 The definition of “family member” under the SAFE Act is expansive and includes a grandparent, grandchild, parent-in-law, or “or any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”25 Employers are not required to compensate employees for this time, although employees may be eligible to elect paid benefits under other company policies or statutes, including the New Jersey Temporary Benefits Disability Law.26

New Jersey also has a statewide paid sick and safe time statute, which covers all private employers.  Eligible employees may use their accrued leave time to handle the effects of domestic violence, including medical attention, counseling, relocation, or legal services.27   

Other Steps Employers Can Consider Taking to Help Employees Affected by Domestic Violence

Finally, you may be wondering what else you can do to assist individuals in your workforce who are affected by domestic violence.  While the answer to that question is worthy of a separate post, for starters, employers can implement an employment policy to address accommodations available to employees affected by domestic violence.  Knowing that job-protected leave is available in a time of crisis can go a long way in promoting survivors’ well-being and financial security.28

In addition to circulating a policy concerning time off to deal with domestic violence-related issues, if you become aware that an employee is a victim of domestic violence, you can consider the following options:

  • disseminate information on available resources, such as local domestic violence agencies;
  • offer to make changes to the work environment to help make the employee safer from threats of abuse by the perpetrator, e.g., change the employee’s work phone number, remove their name and number from automated phone messages and directories, and install caller ID;
  • adopt a workplace safety policy that lays out recommended responses if certain violent behaviors or threats are perceived in the workplace; and
  • train management and staff on the effects of domestic violence on the workplace, how to recognize signs that a colleague may be experiencing domestic violence, and recommended steps regarding what to do or not do in an attempt to help the colleague in such circumstances.

Conclusion

Given the applicable laws in Sweetwater related to domestic violence and the information you have provided, your employee may be entitled to up to three days of leave to help her sibling, if she has exhausted her other available leave time.  Depending on the various leave policies at your company, you may elect to provide pay for this type of leave, or you can ask the employee to use vacation time if she wishes to be paid during her leave.  As her employer, Sympathetic in Sweetwater, you are allowed to ask for reasonable advance notice of the78 absence—if it would not endanger the employee or her sister—and to require some sort of documentation to substantiate the reason for the absence.  Please remember that taking any negative employment action in response to the employee’s use of this leave time, like demotion, reduced hours, or reduced benefits, would be strictly prohibited under Florida law.

Other states and cities have more generous leave laws.  Each of these laws differs when it comes to the length of leave, the authorized reasons for leave, the amount and type of notice employees must provide, whether the leave is paid or unpaid, whether the leave can run concurrently with other types of leave, the existence of policy and posting requirements, and what types of documentation (if any) can be requested from the employee to corroborate the reason for the leave.  As your company considers expanding into new territories, be sure to consult the specific details of laws in each jurisdiction to ensure compliance.

 

Footnotes

1 Please note our broad use of the term “domestic violence” to include other forms of abuse, such as sexual assault and stalking, which are frequently included in the legal definitions of domestic abuse, domestic violence, or intimate partner violence.

2 Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Infographic based on data from the national intimate partner and sexual violence survey: 2010-2012 state report; CDC, Fact Sheet: Preventing Intimate Partner Violence (2009); NISVS, Fact Sheet: Facts Everyone Should Know About Intimate Partner Violence, Sexual Violence, & Stalking (2016).

3 According to the Bureau of Labor Statistics, relatives or domestic partners were the most frequent assailant in work-related homicides of 40 percent of women and accounted for 2 percent of assailants in homicides of men. In addition, offenders tend to use workplace resources to abuse their partners. U.S. Dept. of Labor, Bureau of Labor Statistics, TED: The Economics Daily (Jan. 23, 2018). For example, a study from the Maine Department of Labor found that “78 percent of surveyed perpetrators used workplace resources at least once to express remorse or anger toward, check up on, pressure, or threaten their victim; 74 percent had easy access to their intimate partner’s workplace; and 21 percent reported that they had contacted their victim at the workplace in violation of a no-contact order.” Maine Dep’t of Labor, Impact of Domestic Violence Offenders on Occupational Safety & Health: A Pilot Study (Feb. 2004).

4 Corporate Alliance to End Partner Violence (2005).

5 National Center for Injury Prevention and Control (2003).

6 Fla. Stat. §§ 741.28, 741.313.

7 As an aside, it is worth noting that as of July 1, 2019, employees may be eligible for unemployment compensation if they do not return to work for reasons related to domestic violence. The unemployment eligibility applies if an employee can prove that a voluntary separation and discontinued employment is due to concerns that he or she is facing likely domestic violence while traveling to and from work, and the he or she took steps to preserve the ability to work. Bruce Sarchet, July Is Always the “New January” for Employment Laws, But This Year Takes the Cake!, Littler Insight (June 13, 2019).

8 Fla. Stat. § 741.313(2)(b).

9 Fla. Stat. § 741.313.

10 Me. Stat. tit. 26, § 850.

11 12-170-010 Me. Code R. § 3.  Even though current law in Maine would not support taking domestic violence leave on behalf of a sibling, the new Earned Leave Act provides sweeping paid leave time for employees as of January 2021.  Me. Stat. tit. 26, § 637.  Covered employees will be able to earn one hour of leave for every 40 hours worked. This law is notable in that leave can be taken for any reason.  See Jillian Folder-Hartwell and Sebastian Chilco, Maine Earned Leave Act: Maine Really is the Vacation State, Littler Insight (June 12, 2019).

12 The definition of “family member” includes spouses; individuals in a substantive dating or engagement relationship who reside together; parents, step-parents, children, step-children, siblings, grandparents, or grandchildren; parents of a common child regardless of marital status; and guardians.

13 Mass. Gen. Laws ch. 149, § 52E(c).  See Asha Santos, Domestic Violence Leave Required in Massachusetts, Littler ASAP (Oct. 14, 2014).

14 See Adam Forman, Christopher Kaczmarek, and Carie Torrence, Massachusetts Voters Approve Paid Sick Leave Law, Littler Insight (Nov. 7, 2014).  Covered employees accrue one hour of leave time at their normal rate of pay for every 30 hours worked, and may use up to 40 hours of leave during a calendar year.  Mass. Gen. Laws ch. 151A, § 1(g1/2).

15 Mass. Gen. Laws ch. 268, § 14B.

16 Currently, the New York Human Rights law applies to employers with four or more employees.  However, effective February 8, 2020, it will cover employers of all size, for claims accrued and filed after that date. See  Devjani Mishra and Emily High, New York State Significantly Expands its Workplace Harassment Laws (Again), Littler ASAP (June 20, 2019).

17 N.Y. Penal Law § 215.14; see also N.Y. Exec. Law § 621.

18 Eligible employees include individuals who work in New York City for more than 80 hours per calendar year, with certain exceptions.

19 See Jill Lowell and Sebastian Chilco, New York City Expands Types of Leave Covered by Paid Sick Leave Law, Littler ASAP (Nov. 8, 2017).

20 N.Y.C. Admin. Code 8-107.1.

21 Westchester County Code §§ 700.02(22), 700.03(b)(6).

22 See Jill Lowell, Sanjay Nair and Sebastian Chilco, Westchester County, NY Enacts Standalone Paid “Safe” Time Ordinance, Litter ASAP (May 10, 2019).

23 See Alison Andolena and Keith Rosenblatt, More Family Time and Money: New Jersey Expands its Family Leave Entitlements, Littler Insight (Feb. 27, 2019).

24 N.J. Stat. Ann. § 34:11C-3.

25 Id.

26 Id.; see also N.J. Stat. Ann. §§ 43:21-25 et seq. If a New Jersey employee needs leave to care for a family member with a serious health condition, related to an incident of domestic violence, the employee may be eligible for time off under the statewide family and medical leave law.

27 See Russell J. McEwan, Lauren J. Marcus, and Sebastian Chilco, New Jersey Governor to Sign Statewide Paid Sick and Safe Leave Bill, Littler Insight (Apr. 27, 2018).

28 Further, absent a policy explaining the right to take protected leave, victims may not feel comfortable disclosing the reason for missing work, and they may exceed their limited sick time or other leave, leading to termination. Am. Bar Ass’n Commission on Domestic Violence, Employment Law and Domestic Violence: A Practitioner’s Guide (2009).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.