New MA law allows employees to take leave if victims of domestic violence

By Matt Plain and Greg Vanden-Eykel

A new law in Massachusetts allows employees up to 15 days leave in any 12-month period if they or their family members are victims of domestic violence or abusive behavior.

The law, which went into effect Aug. 8, requires employers (including charter schools) with 50 or more employees to provide leave benefits to employees who are victims of domestic violence and/or abusive behavior, or who are family members of victims of domestic violence and/or abusive behavior.

To qualify for the leave, an employee must show:

1) The employee, or family member of the employee, is a victim of abusive behavior;

2) The employee is using the leave to:

a. Seek or obtain medical attention, counseling, victim services or legal assistance;
b. Secure housing;
c. Obtain a protective order from a court or before a grand jury;
d. Meet with a District Attorney or other law enforcement official; or
e. Attend a child custody proceeding or address other issues directly related to the abusive behavior against the employee or family member of the employee; and

3) The employee did not perpetrate the abusive behavior.

The law (G.L. c. 149, § 52E) defines “abuse,” “abusive behavior,” “domestic violence,” and “family member.”

Generally speaking, the new law defines “abuse” as attempting to cause or causing harm, including threats and intimidation.

“Domestic violence” is abuse against an employee or the employee’s family member by a current or former spouse, a person with whom the employee or employee’s family member shares a child, a person who cohabitates with the employee or employee’s family member, a person who is related by blood or marriage to the employee, and/or a person with whom the employee or employee’s family member had a dating/engagement relationship.

“Abusive behavior” is defined as “domestic violence” and/or stalking, sexual assault, or kidnapping.

“Family members” covered by the statute include individuals married to one another, persons in a substantive dating relationship or engagement who reside together, persons who have a child together, parents, children, step-parents, step-children, siblings, grandparents, grandchildren, and persons in a guardianship relationship.

Prior to requesting leave, eligible employees do not have to work a certain number of hours in the preceding 12-month period, or do not have to work for an employer for a specific amount of time. In other words, leave under the new law is available to all employees on day one of their employment.

Statutory requirements for employers

Employers covered by the new law must notify all of their employees of the newly available benefits and the employees’ responsibilities under the statute.

Importantly, each employer, including charter schools, has the “sole discretion” to determine whether any leave taken pursuant to the new law shall be paid or unpaid. Likewise, each employer may independently determine whether its employees must exhaust other leave benefits provided by the school (e.g., vacation, personal, sick leave) prior to requesting leave under the statute.

Employers should keep in employees’ personnel records all information related to domestic violence and/or abusive behavior leave. That information should remain confidential, unless disclosure is required under circumstances specified in the statute.

Employers cannot discharge or discriminate against employees who take leave under the law. Employees who take domestic violence and/or abusive behavior leave are entitled to their original job or equivalent position upon their return.

Statutory requirements for employees

Because domestic violence and/or abusive behavior is sometimes unforeseeable, employees may not be always obliged to notify their employers prior to taking leave under the new law. Advance notice is not required when an employee or family member faces a threat of imminent danger.

However, the employee, or a statutorily identified person acting on behalf of the employee, must notify his/her employer within three workdays that the leave was taken or is being taken under the new statute.

An employer cannot take an adverse employment action for an unscheduled absence if the employee provides documentation specified in the new law within 30 days of the last day of the unauthorized absence.

However, employers are permitted to request that any employee taking leave, whether taken with advanced notice or because of imminent danger, provide documentation evidencing the abusive behavior / domestic violence. When an employer requests such documentation, the employee is required to comply with the request within a “reasonable period after” the request.

Employer compliance steps

Employers, including charter schools, must amend their employee manuals, benefits brochures, and other applicable employment and personnel policies to notify employees of this new leave benefit. In addition, employers are obligated to proactively notify their employees about these new benefits, including via email, letters and posters in conspicuous work locations.

Charter schools covered by the new law should adopt procedures for employees to follow in notifying the schools of their intention to take such leave, including the time frames by which notifications must be received. Charter schools should also create and disseminate clear policies for disciplining employees who fail to fulfill their obligations under the new law.

Notably, charter school administrators must consider whether leave taken by employees pursuant to the new law will be paid or unpaid, and whether the employees must exhaust other available leave prior to taken leave prescribed under this statute. Charter schools should modify all employment and personnel policies accordingly.

Charter schools should also train administrators concerning these new benefits to ensure they can answer employee questions, and properly handle employee leave requests.

Careful planning now will ensure compliance with the new law, and best prepare schools for addressing potential complaints from employees.

Matt is a partner at Barton Gilman LLP where he focuses on school law, employment law, and civil litigation. Greg is an associate at the firm, focusing his practice on advising clients on education and employment law matters.