Domestic Violence, Sexual Assault & Stalking Victim's Leave

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Domestic Violence, Sexual Assault and Stalking Victims' Leave

Employees who are victims of domestic violence or sexual assault may need time off for legal proceedings, such as obtaining a restraining order, or for medical treatment. Employers have various obligations related to providing such leave. Effective January 1, 2014, protections for victims of domestic violence or sexual assault are extended to victims of stalking.

Time Off for Legal Proceedings. Employees who are victims of domestic violence, sexual assault or stalking may need time off to appear in related legal proceedings or for other purposes. Absence from work for victims of domestic violence or sexual assault is protected by law. You cannot deny the employee the time off. All employers, regardless of size, are prohibited from discharging, discriminating or retaliating against an employee who is a victim of crime who takes time off from work to appear in court to comply with a subpoena or other court order or to serve as a witness in any judicial proceeding. All employers are subject to the same prohibitions regarding an employee who is the victim of domestic violence, a victim of sexual assault or a victim of stalking, and who takes time off from work to obtain or attempt to obtain any relief. Relief includes, but is not limited to:

A temporary restraining order
A restraining order
Other court-ordered relief to help ensure the health, safety or welfare of the victim or his/her child

Time Off for Medical Treatment: Employers With 25 or More Employees. Employees who are victims of domestic violence or sexual assault and who work for an employer with 25 or more employees are protected from termination, discrimination or retaliation for taking time off from work for the following reasons:

To seek medical attention for injuries caused by domestic violence, sexual assault or stalking
To obtain services from a domestic violence shelter, program or rape crisis center as a result of domestic violence sexual assault or stalking
To obtain psychological counseling related to domestic violence sexual assault or stalking
To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault or stalking, including temporary or permanent relocation

This leave is in addition to the requirements related to time off for legal proceedings. Employees must give reasonable advance notice of their intent to take time off, if feasible. Employees who cannot give reasonable advance notice may not be disciplined or discharged if they can provide certification of the need for leave within a reasonable time. The certification may be any of the following:

A police report indicating that the employee was a victim of domestic violence, sexual assault or stalking
A court order protecting or separating the employee from the perpetrator of an act of domestic violence, sexual assault or stalking, or other evidence from the court or prosecuting attorney that the employee appeared in court
Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence, sexual assault or stalking

Employers must maintain the confidentiality of any employee who requests leave as a result of domestic violence, sexual assault or stalking. Employees can use available sick time, vacation, personal leave or PTO for domestic violence or sexual assault victims’ leave. Domestic violence, sexual assault and stalking victims’ leave for medical treatment does not exceed or add to the unpaid leave time that the FMLA allows. This leave is limited to 12 weeks in a 12-month period.

Rights of Employees Returning from Domestic Violence and Sexual Assault Victims’ Leave. An employee who is denied his/her rights under either of the victims of domestic violence, sexual assault and stalking leave laws is entitled to reinstatement and reimbursement for lost wages and work benefits. If you willfully refuse to rehire, promote or otherwise restore an employee as required by a grievance procedure or hearing, you are guilty of a misdemeanor. The employee can take up to one year to file a complaint against you with the state Division of Labor Standards Enforcement (DLSE). If you must lay off an employee who is taking domestic violence, sexual assault or stalking leave, the employee has the same rights and seniority as if he/she had been at work. If you must terminate or lay off an employee who takes domestic violence, sexual assault and stalking victims’ leave, consult legal counsel.

Requesting Leave. Employees who are the victims of domestic violence, sexual assault or stalking may be required to give reasonable advance notice of the intent to take time off, unless notice is not feasible. The employer cannot take action against an employee for taking an unscheduled absence for this reason if the employee provides a certification of the need for leave to the employer within a reasonable time. This certification may be any of the following:

A police report indicating that the employee was a victim of domestic violence, sexual assault or stalking.
A court order protecting or separating the employee from the perpetrator of the act of domestic violence sexual assault, or stalking.
Other evidence from the court or prosecuting attorney that the employee has appeared in court.
Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider or counselor that the employee was undergoing treatment for physical or mental injuries or abuse due to domestic violence, sexual assault or stalking.

Employers must maintain the confidentiality of any employee who requests leave as a result of domestic violence, sexual assault and stalking.
Employees may use any vacation, personal leave or other time off available to them for the purpose of leave for crime victims and victims of domestic violence, sexual assault or stalking.

Discrimination Protections. An employer cannot discriminate or retaliate against an victim of domestic violence, sexual assault or stalking for taking time off work for legal proceedings or medical treatment. A new law effective January 1, 2014, also makes it unlawful to discharge or in any manner discriminate or retaliate against an employee because of his/her status as a victim of domestic violence, sexual assault, or stalking if either:

The victim has provided notice to their employer of their status as a victim of one of these types of crimes; or
The employer has actual knowledge of the status.

This anti-discrimination protection is irrespective of whether the employee has requested time off.

Accommodating Victims. Beginning January 1, 2014, all employers are required to provide reasonable accommodations for employees who are victims of domestic violence, sexual assault or stalking, and who request an accommodation for their safety while working. An employer is not required to provide a reasonable accommodation where the employee has not disclosed his or her status as a victim of domestic violence, sexual assault, or stalking. Reasonable accommodations may include any of the following:

Implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station or installed lock
Assistance in documenting domestic violence, sexual assault or stalking that occurs in the workplace
An implemented safety procedure
Other adjustment to a job structure, workplace facility or work requirement in response to domestic violence, sexual assault or stalking
Referral to a victim assistance organization

The employer must engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations. In determining whether the accommodation is or is not reasonable, the employer must consider the exigent circumstance or danger facing the employee. Employers do not have to make accommodations that constitute an “undue hardship.” Undue hardship can mean that the accommodation is unduly costly, extensive or substantial to you or that would fundamentally alter the nature your business’s operation. For purposes of this law, an undue hardship also includes an action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees. If circumstances change and an employee needs a new accommodation, the employee must request it and the employer must engage in the good faith interactive process again. If an employee no longer needs an accommodation, he/she must also notify the employer.

Documentation of Reasonable Accommodation. An employer can request the employee to provide a written statement signed by the employee (or an individual acting on the employee’s behalf) and certifying that the accommodation is for an authorized purpose. The employer may also request certification from an employee who is requesting an accommodation that demonstrates the employee’s status as a victim of domestic violence, sexual assault or stalking. The same certification that is acceptable for taking time off for legal proceedings is also acceptable for this purpose. An employer can request recertification of an employee’s status every six months. Any documentation, such as a police record or any verbal or written statement that identifies the employee as a victim of domestic violence, sexual assault or staking must be maintained as confidential. It cannot be disclosed except as required by federal or state law, or as necessary to protect the employee’s safety in the workplace. The employee must be given notice before any authorized disclosure.