Executive Summary
Coverage: Massachusetts employers with at least 50 employees. The law is not clear on whether the 50 employees must work in Massachusetts. We therefore recommend that clients with any employees in Massachusetts base coverage on the total number of employees employed anywhere.
Effective Date: Currently in effect.
Overview: A new Massachusetts law gives employees who are victims of domestic violence a right to job-protected leave from work.
Action Required: Covered employers should distribute a new handbook policy to all employees.
The Details
Under the new law, currently in effect, employers with at least 50 employees are required to provide Massachusetts employees with up to 15 days of leave from work in any 12-month period if the employee, or a family member of the employee, is a victim of “abusive behavior” (defined as domestic violence, criminal stalking, or sexual assault) and the employee is using the leave to address related issues.
Reasons for Leave and Use of Paid Time Off and Sick Leave
An employee may take leave to seek or obtain medical attention, to obtain counseling, to obtain a protective order in court, to appear in court or before a grand jury, to meet with the district attorney or other law enforcement official about the abusive behavior, to attend child custody proceedings, or to otherwise address issues directly related to abusive behavior against the employee or the employee’s family member, among other reasons.
The employer can determine whether the leave is paid or unpaid. An employee is required to exhaust available vacation, personal, and sick time before taking domestic violence leave, unless the employer waives this requirement.
Employee Notice Requirements
Employees must provide appropriate advance notice of the need for leave, unless there is a threat of imminent danger. If there is such a threat, the employee may take the leave, provided the employee or the employee’s representative (such as a family member or the employee’s counselor, social worker, health care worker, a member of the clergy, shelter worker or legal advocate) provides notice of the leave within three working days after the employee takes the leave. Further, if an unscheduled absence occurs in this manner, the law prohibits employers from taking any adverse employment action against the employee, provided the employee submits documentation supporting the need for leave within 30 days of the leave of absence.
Employee Documentation Supporting the Need for Leave and Confidentiality
Valid documentation that will support leave under this law includes a protective order issued by a court, a letter from the court or agency addressing the abusive behavior, a police report, medical documentation of treatment as a result of the abusive behavior, a sworn statement signed under pains and penalties of perjury provided by a counselor, social worker, health care worker, member of the clergy, shelter work, legal advocate or professional who has assisted the employee in addressing the abusive behavior, or a sworn statement signed under the penalties of perjury from the employee attesting that he or she had been the victim of abusive behavior, or that a family member has been a victim of abusive behavior.
Further, the law states that any documentation provided to an employer supporting the leave may be maintained by the employer in the employee’s employment record, but only for as long as required for the employer to make a determination as to whether the employee is eligible for leave under this law.
In addition, an employer must keep all information regarding the employee’s leave under the new law confidential and an employer shall not disclose the information except if requested to or consented, in writing, by the employee or ordered to be released by a court or otherwise required by applicable state or federal law.
Employee Protections
Significantly, the law states that no employer shall coerce or interfere with any of the rights provided to employees under this law. In addition, an employer is prohibited from discharging or in any other manner discriminating against an employee for exercising his or her rights under this law. Moreover, taking leave protected under the law shall not result in the loss of any employment benefit incurred prior to the date upon which the leave commenced. In addition, upon the employee’s return from such leave, the employee must be restored to his or her original job or an equivalent position.
Employer Notice Requirements – New Model Handbook Policy
Covered employers must notify employees of their rights and responsibilities under the law. To satisfy this requirement, employers should consider developing a written policy regarding domestic violence leave. As a service to clients we have developed a new model handbook policy which satisfies the notice requirements. Covered clients should distribute the new policy to all employees and should also consider posting the policy. The new model policy is available on Form Source in the New Hire Section and titled Handbook Update – Massachusetts Domestic Abuse Leave – Issued 10/16/14.
Enforcement
The Massachusetts Attorney General’s Office is empowered to enforce the law. In addition, an employee who has been retaliated against for seeking leave, or otherwise exercising his or her rights under the law, is entitled to bring a civil action seeking injunctive relief, lost wages and benefits, and other damages against the employer. Significantly, under Massachusetts law, any employee who prevails on such a claim is entitled to mandatory triple damages and attorneys’ fees.
At this time, it is unclear if the Attorney General’s Office will issue regulations or enforcement guidance on the new leave law. We will notify clients if this occurs.
As always, please contact your Human Resource Business Partner if you have any questions.
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Produced in cooperation with Jackson Lewis, P.C. This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice..
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