Domestic Violence Leave Now Mandated in Massachusetts

On August 8, 2014, Massachusetts Governor Deval Patrick signed sweeping new legislation in the area of domestic violence—M.G.L. c. 260 entitled “An Act relative to domestic violence.” The new law is effective immediately and impacts not only the criminal justice system, but public and private employers in the Commonwealth as well. Under the new law, employers with 50 or more employees must provide employees up to 15 days of unpaid leave in any 12-month period if the employee or a covered family member of the employee is a victim of abusive behavior. Covered employers must notify employees of their rights and responsibilities under the law.

The Attorney General will enforce the new law, and can seek injunctive and equitable relief against employers that violate the law. Moreover, employees who believe their rights have been violated under the new law may bring private enforcement actions utilizing the same enforcement provision used to pursue private claims for Massachusetts wage and hour violations—M.G.L. c. 149, sec. 150. Just as in wage and hour cases, employers found to have violated the new domestic violence leave law are subject to mandatory triple damages and reasonable attorneys’ fees.

Some of the other key features of the new law include the following:

• Employee leave must be directly related to the abusive behavior, such as seeking or obtaining medical attention, counselling, victim services, or legal assistance; obtaining a protective order from a court; meeting with a district attorney or other law enforcement official; or attending a child custody proceeding.

• Employees who take domestic violence leave must exhaust all personal, sick, annual, and vacation leave before receiving unpaid leave, unless the employer determines otherwise.

• Employees must provide employers with advance notice of the decision to use the leave, unless there is a threat of imminent danger to the health or safety of the employee or a member of the employee’s family. An employee who does not give notice must notify the employer within three workdays that the leave was being taken under the Act’s leave provisions. The notice may be provided by certain specified individuals other than the employee.

• Employees who take leave under the new law cannot lose any employment benefit accrued prior to the date on which the leave was taken.

• Employees who take leave under the new law are entitled the restoration of their original jobs or an equivalent position.

• Employers cannot take negative actions against employees for unauthorized absences if, within 30 days of the last day of absence, the employee provides documentation that the absence was due to domestic violence. The forms of acceptable documentation are listed in the new law and include documents such as a police report documenting the abusive behavior.

• An employer may require an employee to provide documentation evidencing that the employee, or the employee’s family member, has been a victim of abusive behavior even if the employee provides advance notice of the leave.

• With limited exceptions, information related to the employee’s leave must be kept confidential by the employer.

• Employers are prohibited from retaliating against or discriminating against in any manner an employee who exercises his or her rights under the new law.

There are numerous unanswered questions in the new law, including whether (1) intermittent leave is required; (2) the exact scope of activities that qualify for leave under the new law; and (3) what happens in the event an employee who has been disciplined or even terminated for absences provides documentation that the absences were due to abusive behavior. Nonetheless, employers are required under the new law to notify employees of their rights and responsibilities under the law. This means that employers must develop and circulate leave policies that include the domestic violence leave provisions. Employers are encouraged to update their handbooks and/or develop a policy surrounding this new type of leave of absence.