Providing Domestic Violence Leave to Employees

A look at employers' legal duties toward employees who are victims of domestic violence.

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Employees who are victims of domestic violence may have the right to take time off from work. The federal Family and Medical Leave Act (FMLA) may require employers to give domestic abuse victims time off in certain circumstances, and some states have passed laws that specifically require employers to provide domestic violence leave: time off to handle the medical, legal, psychological, and practical ramifications of domestic violence.

Domestic violence -- mental or physical abuse at the hands of an intimate partner -- often affects the victim's ability to work. According to Legal Momentum, an advocacy group, victims of domestic violence lose an average of 137 hours of work a year. Some need time off to seek medical attention, a restraining order, or to relocate to a safe place. Others are prevented from getting to work when an abuser disables or takes the car, sabotages childcare arrangements, or leaves the victim without cash to use public transportation.

These problems have led a number of states to pass domestic violence leave laws, which give victims of domestic violence the right to take time off for certain reasons. Some states allow those who are victims of (or witnesses to) any crime to take time off to attend court proceedings; these laws protect victims of domestic violence, although they also apply more generally. And the federal Family and Medical Leave Act (FMLA) may also provide a right to leave for some domestic violence victims. Read on to learn more about your legal obligation to provide time off from work for employees who are victims of domestic violence. (For more tips on your employees' rights to time off, check out Nolo's Time Off & Leave for Your Employees section.)

State Domestic Violence Leave Laws

Almost a dozen states -- including California, Florida, Illinois, and Washington -- and the District of Columbia have passed laws requiring employers to provide domestic violence leave. These laws vary significantly in the details, including:

  • How much time off. Some states allow employees to take up to a set amount of days or weeks off; others allow employees to take a "reasonable" amount of leave or simply prohibit employers from disciplining or firing employees who take time off for reasons related to domestic violence.
  • Reasons for leave. The list of covered activities varies by state, but most allow time off for medical care and psychological counseling, relocation or other safety planning, and seeking a restraining order or participating in legal proceedings relating to domestic violence.
  • Notice and paperwork requirements. Most states require employees to give reasonable advance notice that they will need leave, although these laws also recognize that the employee may be facing an emergency and be unable to give notice. State law may also require employees to provide some written proof that they took leave for reasons related to domestic violence.
  • Use of paid leave. Currently, no state requires employers to pay employees for this time off; only the District of Columbia does. Some states allow employees to use their paid leave (such as sick or vacation days) while taking time off for domestic violence; others require employees to use up all of their paid leave before taking domestic violence leave.

You can find information on each state's domestic violence leave laws at www.legalmomentum.org.

State Crime Victim Laws

In addition to laws that require employers to provide domestic violence leave, most states have laws that protect employees who must take time off for legal matters relating to a criminal case in which they are a victim or witness. These laws differ in the legal matters they cover: Some states protect only employees who have been subpoenaed to appear in court and testify; others cover more activities, such as seeking a restraining order, attending court hearings, or preparing to testify.

Family and Medical Leave Act (FMLA)

The FMLA is a federal law that allows certain employees to take up to 12 weeks off every 12 months for their own serious health condition, to care for a family member with a serious health condition, or to care for a new child (among other things). An employee who is physically injured or develops psychological trauma as a result of domestic violence might be entitled to FMLA leave. An employee might also be able to take time off to care for a parent or child who has been a victim of domestic violence.

FMLA leave is unpaid, although employees may use their accrued paid sick or vacation leave while on FMLA leave. The FMLA applies only to employers that have at least 50 employees working within 75 miles of each other. FMLA-eligible employees are those who have worked for at least a year, and at least 1,250 hours in the past year, for the employer. For more information on the FMLA, see Nolo's article Providing Family and Medical Leave.

Restraining Orders for Employers

A restraining order (often called a "stay away" order) requires a perpetrator of domestic violence to stay a certain distance away from the victim. A restraining order often also requires the abuser to stay away from certain places, such as the victim's home and the school attended by the victim's children, if applicable. The purpose of a restraining order is to allow law enforcement to step in before anyone gets hurt. A batterer who gets too close to the victim has violated the order and can be detained by the police.

Some states allow businesses to get their own restraining orders if they are threatened with violence, and employers can use these laws to get restraining orders against an employee's batterer. Such a restraining order requires the batterer to stay a certain distance away from the employer's property or face arrest. You can find detailed information about workplace restraining orders at the website of Legal Momentum, www.legalmomentum.org.

by: , J.D.

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