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.

Vermont Crime Victims Leave Law About to Debut

Posted on: June 13, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

Many states require employers to allow employees to take time off from work for court proceedings in which they are a victim or witness.  Most of these laws are very general and do not provide duration, notice or documentation requirements, or other parameters that are the hallmarks of what we normally think of as “leave of absence” laws.  Indeed, they are more correctly considered “nondiscrimination” laws, with court appearances as the protected classification.  Just as you can’t terminate someone because of age, race, gender, disability and so on, you can’t terminate an employee for absences due to court attendance or related matters as a crime victim.

Vermont has passed a new law that adds crime victims as a protected status under the state’s Fair Employment Practices Act.  It provides a little more substance to the employees’ rights than many typical crime victims’ laws but, in our opinion, it is still primarily a nondiscrimination statute.

The new law allows employees who are crime victims to take unpaid leave only, to attend a deposition or court proceeding related to:

  • Certain criminal proceedings (the covered crimes are defined by the statute and range from
    things like sexual assault, domestic abuse and stalking to murder);
  • Relief from abuse hearings; order against stalking or sexual assault hearings; or
  • Relief from abuse, neglect, or exploitation of a vulnerable adult hearings.

Key provisions:

  • All employers are covered and required to comply.
  • The employee may choose to use accrued sick leave, vacation, or any other accrued paid
    leave to receive pay during the leave.
  • The employer must continue employment benefits for the duration of the leave at the
    level and under the conditions provided during employment.
  • The employer must post in each workplace a notice of the provisions of the law. The
    Vermont Commissioner of Labor will provide a form notice for this purpose, which should
    be accessible here once available.
  • The employee is entitled to job restoration to the same or comparable job at the same level of
    compensation, employment benefits, seniority, or any other term or condition of the
    employment existing on the day leave began.

Not a “domestic violence” leave law.  Many states have laws that specifically provide leave of absence and job protections for employees who are victims of domestic violence, sexual assault and stalking.  These laws provide broader job-protected leave for reasons such as seeking medical attention, counseling or safe living arrangements, as well as attending related court proceedings.  This Vermont law does not go so far, allowing job-protected time off only for depositions and court proceedings.

Who is accountable? Matrix typically does not administer this type of law (one that is primarily a nondiscrimination law). Why? There is nothing to track or assess; no employee eligibility rules, no limits on amount of time of available, no documentation requirements, etc. In the case of this particular Vermont law, the actions required are strictly within the province of the employer: posting the required notice, allowing the use of vacation pay, managing continuation of benefits, ensuring job protection, and so on. However, it’s on our Matrix Radar, and we believe it’s important to provide clients and readers with relevant information on laws impacting our industry and your employees.

The law goes into effect on July 1, 2018.

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.