MA mandates domestic violence leave

September 09, 2014

Employment Law Alert

Author(s): Neal J. McNamara

On August 8, 2014, Governor Deval Patrick signed an emergency law entitled “An Act relative to domestic violence.” The new legislation, effective immediately, mandates that all employers with 50 or more employees  permit an employee to take up to 15 days of leave from work in any 12-month period if the employee, or a family member (defined below) of the employee, is a victim of abusive behavior (defined below) and the employee is using the leave from work 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; and
  • The employee is not the perpetrator of the abusive behavior against such employee’s family member.

Family members include:

  • 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.

The Act defines “abusive behavior” as:

  • Domestic violence, defined as abuse by a person with whom the individual is in a relationship
  • Stalking
  • Sexual assault
  • Kidnapping

An employee must provide appropriate advance notice of the leave to their employer, provided there is no serious threat of imminent danger to the health or safety of the employee or the employee’s family member. If so, then the employee shall notify his or her employer within three workdays that the leave was taken or is being taken.

Covered employers may require an employee to provide documentation evidencing that the employee or his or her family member has been a victim of abusive behavior, but may not require evidence of an arrest, conviction or any other law enforcement documentation. Employers are required to keep confidential all information and documentation concerning an employee’s leave under this law.

Other aspects of the new law for employers to be aware of include:

  • Employees must exhaust all annual or vacation leave, personal leave and sick leave available to them prior to requesting or taking domestic violence leave , unless the employer waives this requirement.
  • Taking domestic violence leave  shall not result in the loss of any employment benefit accrued prior to the date on which the leave taken under this section commenced. Upon the employee’s return from such leave, the employee shall be entitled to restoration to the employee’s original job or to an equivalent position.
  • In the event of an unscheduled absence, employers shall not take any negative action against the employee if, within 30 days from the unauthorized absence or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences, the employee provides documentation sufficient to put the employer on notice that the leave was due to domestic violence.
    • Sufficient documentation includes:
      • Protective orders;
      • Documents under the letterhead of the court;
      • Police reports;
      • Documentation that the perpetrator has admitted to sufficient facts to support a finding of guilt of abusive behavior, or has been convicted of abusive behavior;
      • Medical documentation of treatment as a result of abusive behavior;
      • A sworn statement, under the penalties of perjury, by a counselor, social or health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or employee’s family in addressing the effects of abusive behavior; or
      • A similar sworn statement 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.
    • Any documentation related to the employee’s leave must be kept confidential by the employer.
  • Employers found to have violated the law are subject to mandatory triple damages and reasonable attorneys’ fees.

The Massachusetts Attorney General is charged with enforcing the law, and may obtain injunctive or other relief. Employees also have a private right of action. While the new law still leaves some questions unanswered, particularly whether intermittent leave is required, employers are still required to notify employees of their rights and responsibilities under the law. Therefore, employers should develop policies that include domestic violence leave provisions. Employers should also be aware that the dynamic of domestic violence often creates strong barriers against disclosure, and that domestic violence can affect anyone of any social background.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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