New York Adds Leave Law for Victims of Domestic Violence

Posted on: September 30, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

September 30, 2019

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View New York Social Services law § 459-a.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

Leave reasons.  Reasons for leave are limited to:   

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

Leave rights for victims of domestic violence:  Growing need,  multi-state trend

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

If you don’t think you need to know about state leave laws that protect victims of domestic violence and similar crimes, consider this:

  • More than 27% of women and 11% of men have experienced contact sexual violence, physical violence, and/or stalking by an intimate partner in their lifetime. Commonly reported negative impacts were feeling fearful, concern for safety, and symptoms of post-traumatic stress disorder.
  • Significantly more women and men with a history of sexual violence or stalking reported asthma, irritable bowel syndrome, frequent headaches, chronic pain, difficulty sleeping, and limitations in their activities compared to those without a history of these forms of violence.

Centers for Disease Control 2010-2012 State Report fact sheet, accessed July 12, 2017.

In other words, many of your employees are among these victims.

At Matrix we see a comparatively small number of domestic violence leave requests.  As a good employer, are you educating your employees on their rights to this type of leave in certain states or under company policies?  We have no statistics for this, but it seems logical that leave taken early, when needed, may reduce the need for more extensive time off later.  And as an employer you’ve done the right thing.

Some of the victims’ needs, such as treatment for and recovery from physical and mental injuries resulting from the violence, may be eligible for job-protected leave under the federal Family and Medical Leave Act and similar state laws.  However, these victims often require time off for other related issues such as protecting their families by moving to a new location, obtaining counseling, and obtaining a court-issued protective order.

For these reasons, the number of states enacting or expanding laws that provide leave of absence specifically for victims of domestic violence is increasing.  Nevada is the latest to join the ranks, and California has expanded its notice requirements effective July 1 (see story below).

Nevada enacts leave for victims of domestic violence

Effective January 1, 2018, Nevada employers will be required to provide leave to eligible employees who are a victim of domestic violence or whose “family or household member” is the victim of domestic violence.

Under the Nevada law, an employee must have been employed for at least 90 days to be eligible for the leave. Eligible employees may take up to 160 hours of leave (equivalent to 20 8-hour days) in a 12-month period, continuously or intermittently, within 12 months of the date of the act of domestic violence that necessitated the leave.  The Nevada leave will run concurrently with FMLA if taken for an FMLA-qualifying reason (for example, to get treatment for and recover from incapacitating injuries or care for a family member).

Domestic violence is defined as an act committed by a spouse, former spouse, person with whom the victim has a dating relationship or shares a child, and other relationships, and includes acts such as assault, battery, sexual assault, stalking, larceny, compelling an unwanted action, and trespassing.

Following any immediate leave necessitated by the incident of domestic violence, an employee must provide at least 48 hours’ advance notice to the employer of leave for any of the following reasons:

  • For the diagnosis, care or treatment of a health condition related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;
  • To obtain counseling or assistance related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;
  • To participate in any court proceedings related to an act which constitutes domestic violence committed against the employee or family or household member of the employee; or
  • To establish a safety plan, including, without limitation, any action to increase the safety of the employee or the family or household member of the employee from a future act which constitutes domestic violence.

Employers may require documentation supporting the need for leave, such as a police report, copy of an application for an order for protection, an affidavit from an organization which provides services to victims of domestic violence or documentation from a physician.

“Family or household member” means a: (1) Spouse; (2) Domestic partner; (3) Minor child; (4) Parent; (5) other adult person who is related within the first degree of consanguinity or affinity to the employee; or (6) other adult person who is or was actually residing with the employee at the time of the act which constitutes domestic violence.

The law also requires Nevada employers to make reasonable accommodation(s) to employees who are victims of domestic violence or whose family or household member is a victim of domestic violence.  Accommodations may include transfer or reassignment; a modified schedule; a new telephone number for work; or any other reasonable accommodations which will not create an undue hardship deemed necessary to ensure the safety of the employee, the workplace, the employer or other employees. 

The Nevada bill protects employees from adverse employment actions based on taking leave as permitted by the act.

Employers are required to maintain records of leave taken for 2 years and to post a notice of employee rights. The Nevada Department of Labor is working on a form of notice for employers to post.

To read the full text of the Nevada law, click here: https://legiscan.com/NV/text/SB361/id/1628891

Domestic violence leaves in other states

With this law Nevada joins the following states that have similar domestic violence leave laws (although they vary in details by state):  California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, New Jersey, New Mexico, North Carolina, Oregon and Washington.

In addition to these specific “personal protection” leaves, virtually all states have laws that provide job protection for victims or witnesses for time spent testifying in court or assisting prosecuting attorneys with respect to various crimes, not just crimes relating to domestic violence.  These laws generally do not have any employee eligibility requirements, notice requirements, or duration limitation.

Reminder:  California employers must start providing notice of domestic violence leave rights July 1

California law requires employers to provide leave of absence rights for victims of domestic violence, sexual assault, and stalking.  Leave reasons including taking time off from work to get help to protect the employee’s and employee’s children’s health, safety or welfare, including time off to get a restraining order or other court order.  The text of the law can be viewed at this link.

Effective July 1, 2017, employers must provide a notice of employee rights under the law to all new workers upon hire and to other employees upon request.  The Labor Commissioner has developed and posted a form that employers may use to comply with the notice requirements.

Pings for employers.   Employers should copy the form and distribute it to all current employees and add it to their new-hire packets.  In addition, although the law does not specifically require this, a great extra step is to post the notice on bulletin boards in employee break rooms and wherever other employment-related notices are posted.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.