Massachusetts Attorney General Advisory on Newly Enacted Domestic Violence Employment Leave Law
On October 28, 2014, the Massachusetts Attorney General (AG) posted an advisory, information sheet, and complaint form concerning a newly enacted statute providing employment leave for victims of domestic abuse. The AG advisory concerns An Act Relative to Domestic Violence, which became effective upon Governor Deval Patrick’s signing on August 8, 2014. The employment portion of this new statute will be codified at G.L. c. 149, § 52E. The Attorney General’s Office is taking this new legislation seriously, and employers must become familiar with their obligations.
Employment Leave For Domestic Abuse Victims
Employers with fifty or more employees must allow an employee up to fifteen days of leave in any twelve month period if the employee (or a family member) is a victim of domestic abuse; the leave must be for reasons directly related to domestic violence. Employers may decide whether this leave is paid or unpaid, and whether to require employees to exhaust all other leave prior to seeking domestic violence leave. Employees who take leave do not lose any employment benefits accrued before the leave, may not be discriminated against or terminated for taking such leave, and must be restored to their original job or equivalent position upon return.
An employee who wishes to take domestic violence leave must give their employer “appropriate advance notice of the leave … as required by the employer’s leave policy.” If, however, there is a case of “imminent danger to the health or safety of an employee or the employee’s family member,” the employee need not give such advance notice; rather, the employee is required to notify the employer within three workdays that leave is being taken under this law. Advance notice may be given by the employee, or by family members or other professionals involved in the situation.
If an employee fails to report to work, the law prohibits an employer from taking negative action against the employee if, within thirty days from the unauthorized absence or within thirty days from the last unauthorized absence, the employee provides appropriate documentation. Thus, employers must take care in how they discipline employees in light of this.
Employers are under an affirmative obligation to notify all employees about their rights and responsibilities. The AG advisory lists the ways in which employers may notify employees, including employee manuals, memos to employees, or letters or e-mails to employees. Employers subject to the law should review their leave policies, or create new policies tailored specifically to this law, and seek the advice of employment counsel.
Employers may (but need not) require an employee seeking domestic violence leave to provide documentation confirming that the leave sought or taken comports with the statute’s letter and spirit. The employee must provide it within “a reasonable period” after the employer requests it. Seven types of documents presumptively satisfy the employee’s requirement, including protective orders issued by courts related to the abuse and medical documentation of treatment as a result of the abusive behavior, among others. Employers must maintain confidentiality of such documentation, with certain limited exceptions, and must retain documentation in the employee’s file, but only for so long as is required to determine the employee’s eligibility for leave.
Uncertainty & Action Items
Although the new domestic violence leave law is highly detailed, ambiguities remain. For example, the law states that leave is not available to an employee who is the perpetrator of the abusive behavior against his or her family member. One can imagine disagreements as to who the “perpetrator” is. There are several additional gray areas that have yet to be clarified, but despite the uncertainty, employers are encouraged to consult employment law counsel in crafting revised or new leave policies to comply with this statute.
The law is enforced by the Attorney General, who may seek injunctive or equitable relief. Also, employees have a private right of action under G.L. c. 149, § 150; employers may be found liable for mandatory treble damages and attorneys’ fees, as in wage and hour claims.