On August 8, 2014, Massachusetts Governor Deval Patrick signed into law a new statute requiring employers with 50 or more employees to allow employees to take up to 15 days of unpaid leave within a 12-month period when an employee or an employee’s family member is the victim (not the perpetrator) of domestic abuse. The new law (M.G.L. c. 149, § 52E), which took immediate effect upon signing, allows victims of domestic abuse to take time away 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 the employee’s family member.
Employees taking leave under the statute must first exhaust all of their accrued paid time off (if any) before receiving unpaid leave.
An employee must provide the employer with advance notice of the need for 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. In the event an employee is not able to provide advance notice of the need for leave, the employee must notify the employer within three (3) workdays that leave was taken for a reason related to domestic abuse. Such notification may be communicated to the employer by the employee, a family member of the employee, the employee’s counselor, social worker, health care worker, legal advocate, or other professional who has assisted the employee in addressing the effects of the abusive behavior.
An employee taking leave the statute may be required to provide the employer with documentation evidencing that the employee or the employee’s family member has been the victim of domestic abuse. Any one of the following forms of documentation will be acceptable:
- A protective order, order of equitable relief, or such other court order issued as a result of the abusive behavior against the employee or the employee’s family member.
- A document on the letterhead of a court, health care provider, or public agency that the employee attended for purposes of acquiring assistance as it relates to the abusive behavior against the employee or the employee’s family member.
- A police report or victim/witness statement provided to police, including a police incident report, documenting the abusive behavior against the employee or the employee’s family member.
- Documentation that the perpetrator of the abusive behavior has pled guilty, been convicted of, or been judged a juvenile delinquent by reason of any offense constituting abusive behavior against the employee or the employee’s family member.
- Medical documentation of treatment received as a result of the abusive behavior complained of by the employee or the employee’s family member.
- A sworn statement provided by a counselor, social worker, health care worker, legal advocate, or other professional who has assisted the employee or the employee’s family member in addressing the effects of the abusive behavior.
- A sworn statement from the employee attesting that he or she has been the victim of abusive behavior or is the family member of a victim of abusive behavior.
All information regarding an employee’s leave for reasons related to domestic abuse must be kept confidential and may not be disclosed, except to the extent it is (i) requested by the employee in writing, (ii) ordered to be released by a court; (iii) otherwise required by applicable state or federal law; (iv) required in the course of an investigation by law enforcement; or (v) necessary to protect the safety of the employee or other company employees. Employers may maintain such documentation only for as long as it takes to determine whether an employee is eligible for leave under the statute.
In the event of an unauthorized absence due to domestic abuse, an employer may not take any adverse action against an employee as long as the employee provides the employer with any of the documentation listed above within 30 days of the last day of such unauthorized absence.
Taking leave under the statute may not result in the loss of any employment benefits accrued prior to the date on which such leave begins. Upon return from leave, employees must be restored to their original or equivalent position. Employers may not retaliate or discriminate against any employee who takes leave under the statute.
The Massachusetts Attorney General has authority to enforce the statute. Employees also have the right to bring a private action for violation of the law. Employers found to have violated the law will be subject to mandatory treble damages and attorneys’ fees.
The statute also requires employers to notify their employees of their rights under the law. Consequently, employers should immediately update their employee handbooks or issue a stand-alone policy setting out the new domestic violence leave requirements.
Thanks to Hannah Joseph and Shannon Lynch for contributing to this post.