Tracking the growing number of “safe leave” laws, an umbrella term that applies to domestic violence, sexual assault, and stalking laws, could be a full-time job for human resources and absence management specialists, say legal experts from Matrix Absence Management, who provide resources and guidance in this episode.
Additional resources mentioned in the episode:
DMEC: Welcome to Absence Management Perspectives: A DMEC Podcast. The Disability Management Employer Coalition, or DMEC as we're known by most people, provides focused education, knowledge and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 16,000 professionals from organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you will visit us at www.dmec.org to get a full picture of what we have to offer, from webinars and publications to conferences, certifications, and much more. Let's get started and meet the people behind the processes.
Heather Grimshaw: Welcome to Absence Management Perspectives: A DMEC Podcast. I'm Heather Grimshaw, communications manager for DMEC, and I'm here today with Lana Ruprecht, Esquire, director of product compliance for Matrix Absence Management, Inc., and Marti Cardi, Esquire, senior compliance consultant for the product compliance team with Matrix Absence Management, Inc.
Lana and Marti recently answered questions about domestic violence, sexual assault, and stalking laws on the DMEC Communities, a virtual networking group, and they agreed to shed light on some of the issues posed and the resource they created for employers. We've included a link to that resource in the Notes section of this podcast, along with a few other resources that you'll hear discussed today.
To get us started, I'm hoping you'll shed some light on how employers can track these leave laws to ensure employee safety. More than 20 states have passed domestic violence, sexual assault, and stalking laws, along with state mandated paid family and medical leave laws that include leave. For these reasons, what's the best way for employers to keep track? And does the federal Family and Medical Leave Act apply here?
Marti Cardi, Esq.: Heather, thanks. That's a great question for us to get started with. It is difficult for the average employer to keep track, and there are several variations of laws that offer similar types of leave which cause extreme complications for the employer. I just want to say that it gets to be a mouthful to talk about domestic leave to protect employees who are victims of domestic violence, sexual assault, and stalking laws. And so sometimes we will use the term safe leave to denote these types of job protection laws, and we also may just abbreviate it down to domestic violence, but that doesn't mean we're not talking about all these related types of crimes that the laws cover. Let's start with your point about the federal Family and Medical Leave Act (FMLA). First, as we'll discuss in a bit, there are some common leave reasons for employees to take time off from work under these specific safe leave laws, and the FMLA overlaps a little bit, but not a lot. It does not have most of the typical reasons for safe leave, which, as I explained, we'll get into in a little bit, but it does cover medical treatment or a serious health condition for the employee or a family member. So if the employee or a family member is a victim of one of these crimes, the federal FMLA might provide coverage if there's an injury or illness related to the domestic violence that rises to the level of a serious health condition. But more specifically, we're going to look at the safe leave laws that come in a variety of packages these days. We have those that you just mentioned that are specific state leave laws providing time off and sometimes other job protections and job place accommodations for the victims of these types of crimes. In addition, there's a new trend in the paid family and medical leave (PFML) laws that many states are now adopting to include safe leave as one of the reasons an employee can take paid leave under the state program. And so even in a single state, you might have both a specific domestic violence leave law as well as coverage under the paid family and medical leave program in a state. And then a third category that can layer on many states and municipalities and even counties have paid sick leave, the kind of leave that accrues based on hours worked. And many of these laws require employers to permit employees to take paid sick leave when the employee or a family member is a victim of domestic violence. And that would be also, like we said, referred to as safe leave. And then it bears mentioning that virtually all states have laws that provide job protection for victims or witnesses when they are subpoenaed to attend court or assist prosecuting attorneys with respect to many types of crimes or sometimes any crime, and not just the crimes relating to the safe leave type of situations. These court attendance laws, as we call them, generally don't have any employee eligibility requirements, notice requirements, or specific duration. So you have to watch out for those and make sure that your employees are provided appropriate time off when they are called upon to be a witness in a criminal proceeding.
Lana, Heather asked the question about how an employer can keep track of all of these various things. Do you have any suggestions on resources out there to help employers with this monumental task?
Lana Ruprecht, Esq.: Yes, absolutely, Marti, and I think that's a really great question because this can be overwhelming and I think the amount of laws in the different categories actually could be a full-time job for HR representative or employment law attorney to keep track. But matrix absence Management, we actually have a table that identifies the numerous jurisdictions that enact the state domestic violence leave laws. And we'll provide a live link to this in the notes to this podcast that you can click on and look at. This table is great. It's a one stop shop for employers to track the growing number of jurisdiction offering this type of leave and provides an overview of the requirements. Also, a good resource for the state and local paid sick time laws that we were talking about that can be found at a better balance (www.abetterbalance.org). These discuss whether sick time can be used for safe leave purposes as well. So that's another resource. But I just want to say, even if you have these resources, you still want to consult with your employment law attorney when these type of situations arise and when dealing with employees who are requesting this type of leave and or accommodations under these types of laws, because they vary widely from state to state and jurisdiction to jurisdiction.
Heather Grimshaw: Thank you both, that's really helpful and hearing that there's upwards of three different types of laws that employers need to consider as they're fielding these types of very serious requests. The resources are very helpful and again, we will have those in the notes section, the URLs to follow. So it would be really helpful to hear some of the reasons employees can take protected leave under these laws. Are you willing to share some examples?
Marti Cardi, Esq.: Sure, yeah, because it's really important to understand what the employees needs might be that are protected by these various laws. And specific leave reasons generally fall into about four main categories. As I mentioned, there's only one type of category that is also covered by the FMLA. And we'll mention that, again, one of the common reasons that an employee might need time off is in order to obtain legal or court assistance, such as getting a restraining order to ensure that the employer, the employee's, child, or family is safe. So going to court to get court ordered protection might be one main leave reason. That's very common. Another common reason is [to take] leave to obtain medical care or psychological counseling for the employee or a family member. And this is the one that might be covered by FMLA. And since I mentioned here care for the employee or a family member, it's important to point out that some of these laws provide protections only when the employee is a victim of domestic violence or these other similar types of crimes whereas some of the laws provide coverage and protections for the employee's job when a family member is the victim. So again, it's important to look at exactly what state law or municipal law you're dealing with and what the breadth of coverage is for that. Another commonly reason is to obtain services from a domestic violence shelter program or rape crisis center, public services like that, social welfare services. And again, depending on the employee on the law, this could be for the employee herself or a family member and I just said for the employee herself. Most victims of domestic violence in these types of crimes are women, but men can be victims also. So that's an important point to remember don't ignore the man who might be the male employee who might be a victim based on stereotypes that it's always a woman, because it isn't. And then finally, another commonly reason under these laws is to allow the employee time off in order to take safety precautions to protect against future domestic violence or sexual assault, including temporary or permanent relocation of the employee's residence. Those are the four most common types of reasons covered by all of these variety of leave laws.
Heather Grimshaw: Thank you for that overview, Marti. I think it's especially pertinent to add in the piece of being careful of stereotypes and really looking at the person who's coming to you or who you recognize might need help instead of assuming it would be one gender or another. So do you all expect to see more of these laws? And if so, what should employers do now to prepare? Are there examples of best practices for employers that you could discuss?
Lana Ruprecht, Esq.: Yes, that's a great question or questions, actually. We would not be surprised, though, if more states enacted these types of laws going forward. Particularly, it seems that more and more states are incorporating this type of leave into their paid leave legislation. As to your question, what is the best way to prepare? I think employers just need to make sure their current policies and procedures internally comply with applicable state laws and to modify them accordingly if there's any new laws that changes in the future enacted or if the requirements change. As to best practices, we actually developed, along with the DMEC, a checklist of best practices that you can see in the notes description of this podcast that goes through step by step and we can summarize these steps for you right now. I'll have Marti start with the first step and we can go from there.
Marti Cardi, Esq.: Thanks, Lana. Yeah, the first step is easy to state, which is recognize the situation that the employee is in, but that is not always easy to put into practice. An employee who has experienced or is experiencing domestic violence may be afraid or embarrassed to share information with you. And so it's kind of up to the employer, and especially we're going to talk more than once about training supervisors to notice if there's a change in behavior of the employee or observable physical injuries that cause you to suspect that the employee or a family member is a victim. You want to be careful that you don't pry because it's a very sensitive situation, but do what you can to open the door, offer help to the employee. Just ask general questions like are you all right, or can we offer any help? Or make general statements and let the employee volunteer information to the extent he or she is comfortable. And supervisors should never hesitate to enlist help from HR to manage the situation. Lana, why don't you take it and tell us about next steps?
Lana Ruprecht, Esq.: Yes, the next step we have and it's in the checklist that you'll see is step two gather the facts. And just like exactly what Marti said, the best way to gather facts is to ask open ended questions. You don't want to come across as prying. You don't want to ask information that the employee isn't willing to give out that impacts their privacy or medical information, but questions such as how can I help you? What do you need? Is there anything I can do? Those kind of questions are open ended and show that you care about the employee and their safety and welfare, but aren't prying, and it enables you to gather facts. And we'll talk more, too, about the supervisor in this process. The supervisor can ask the open-ended questions, but ultimately you want to have a central point at your organization, whether it's the lead management group, the HR group that you can hand this off to, to make sure the supervisor isn't in the situation of putting this all in, a supervisor to get all this information. And then also an important part of step two when you're gathering the facts is as an employer, you should be documenting what the request was and what the employee said and keeping that in a separate confidential file. Step three know the laws. This seems pretty basic, but like we said, these vary from state to state and they vary quite a bit. So it's very important. So after gathering the facts, the employer should consult with their human resources expert or their employment law attorney to determine the compliance obligations based on the situation. I already mentioned before our table chart that we created that is very informative and will be in the notes, but that is not a substitute for actual legal advice in this type of situation. And so when you're doing this, you want to check with your attorney, check federal law. Like Marti mentioned at the beginning of this, in some situations, the federal Family and Medical Leave Act can apply if the employee has a serious health condition. Also, look at the state law requirements. Determine what your obligations are as an employer under the law, what sort of documentation you should request and obtain, and what you are able to obtain. And third, are there any municipal or local laws that apply as well? So these are all questions that you should get into when working closely with your attorney on this situation. And now we have step four, and I'll turn that back over to Marti.
Marti Cardi, Esq.: Thanks, Lana. And before I go on to that, I do want to go back and talk a bit more about the state law requirements, because we've been focusing basically on the state laws that specifically provide safe leave of some kind. Whether it's the paid sick leave, the PFML, the specific domestic violence leave laws, but there are other state laws that might be applicable to. And talking about the Family and Medical Leave Act kind of brings this up because a lot of states have state level FMLA equivalents. They're not the paid leave programs that are becoming prevalent, but [they] are similar to the FMLA with regard to job-protected but unpaid time off, such as the California Family Rights Act. Other states that have the job protected leaves that again might cover, if not specifically safe leave, might cover for the medical reasons that an employee might need time off for themselves or a family member. So your next step in the process is to gather the documentation that you're entitled to that will support the employees request. And sometimes these laws allow employees to ask for a workplace accommodation that will help make them safer or deal with their situation better or [they might ask for] time off. So if the employee is asking for a time off or workplace accommodation, you are entitled to get documentation to support. But this is spelled out by law and it will vary by law. Generally, though it will include things like proof of a court proceeding the employee needs to attend or a provider's note to indicate time off for medical care or counseling. Another common example of documentation that comes up in these situations is the employee may obtain a restraining order against the offender and to require, by court order, the offender to stay a certain distance away from the employee, say no closer to the employee than 500 feet. And this will usually be effective while the employee is at work as well. So if the employee tells you that they have a restraining order for the offender to stay away from them, you're entitled to get a copy and know the parameters of that order and get a photograph of the offender to make security or other appropriate personnel or workplace aware to be on the lookout for this individual. And then just remember that such information is highly sensitive and confidential and make sure that you again, that training word, make sure you train your managers and human resources department appropriately to ensure that the information is maintained securely and confidentially. Lana, I'll let you take on our last couple of steps on our checklist.
Lana Ruprecht, Esq.: That sounds great, thank you, Marti. Step five, which you will see again you'll have the link to this in the notes section and you can go through this document. But step five that we have is educate employees. This step should really be taken proactively at all times by the organization, even though we have it as step five. This is something employers should always be doing and all employers throughout the employment relationship should make sure they educate their employees on their rights under applicable state laws for this type of leave. And employers should utilize state mandated notices and company policies and handbooks to aid in this communication. Under many of these leave laws we're discussing, there are required notices or required content that needs to be placed in the handbook. So again, that's another piece. You want to work with HR and your employment lawyers to make sure that you are complying with that. And once an employee needs leave for domestic violence, sexual assault, stalking, or other similar types of crimes, it will be a very emotional and difficult time. So it's always a good practice to personally provide the employees with a written description of their rights under the applicable laws. Instead of saying, just go to the handbook, it's there. The employee will need time to take in the information and identify any questions or concerns that they have. And then step six, check in with the employee. This is a very important step. As with all leaves and accommodation requests, the work just doesn't end once the leave is granted, right? In fact, an employee who needs leave for reasons associated with domestic or sexual violence or stalking, I think it's so important just as a good employer, to check in and make sure they're safe, make sure they're comfortable. Just, again, use those open-ended questions we talk about. Is this working for you? Is there anything else you need? Is there anything else we can do to help? So just friendly check in to ensure the employee is safe and secure are important, and you want to make sure the check in is coming across in a compassionate manner and truly a way to make sure the employee is doing okay and that the accommodation and our lead request is working for them.
Heather Grimshaw: That's a really important note there, Lana. I think throughout, both of you have talked about the support that's necessary. I think that will resonate with listeners. So in addition to the leave, some states that have passed these laws also require accommodations and you provide helpful guidance in the leave for domestic violence victims checklist. Would you talk a little bit about the fact gathering process and the guidance provided?
Marti Cardi, Esq.: Some of these laws do require that employers not only offer leave to the employee, but also set forth a duty to accommodate an employee who is impacted by domestic violence or a similar crime. And accommodations might include things like changing the employee's work phone number or physical location or allowing a flexible work schedule so the employee can change the times of arriving and departing from work, not be so predictable if someone is stalking them or watching to try to catch them on their way to or from work. So there are some types of accommodations employers might have to provide. As far as the fact gathering process. Lana, I'm going to turn that over to you and let you talk about how we go about that.
Lana Ruprecht, Esq.: But it's so important, not just in a leave context, but in an accommodation process request is to listen actively and carefully to what the employee needs. And always keep in mind, this is a very traumatic and extremely sensitive situation. So just to echo what we both have already discussed before. You want to ask open ended questions. Again, you want to stay away from any type of intrusive questions that would provide you with information that you don't need. And what you want is information that is helpful to allow you as an employer to accommodate the employer. I mean, the employee you should not ask for, nor should you want too much information. For example, if the employee needs time off for medical treatment, there's no need to ask what the exact injury is in this situation. Similarly, if the employee is taking a child to counseling, you don't need to know what the issues the child is specifically struggling with in that situation either.
Heather Grimshaw: So do you two expect to see a paid leave for domestic violence, sexual assault, and stalking leave on the horizon?s going into effect September:
Lana Ruprecht, Esq.: And I'll just jump in on the other part of the question, too. And to the extent that you're asking, Heather, if there's any national or federal paid domestic leave law, we don't anticipate one at this time. The state laws are quite different from state to state, and we don't expect that any federal law would preempt these existing laws. And like I said, state laws mandating this type of leave very widely and eligibility and the types of protections that are offered, but we're continuing to track these developments that may change, we can't see into the future. So practically just preparing and administering one such law, though, we just think would be pretty tricky.
Heather Grimshaw: Absolutely. That's really helpful. Thank you for covering that from all angles. In a domestic violence situation, employers want to balance their need for documentation with an employee's need for privacy. Can you share best practices for what documentation is appropriate and how employers determine when they have enough? This is something that you've touched on a little bit throughout, and I think it would be helpful just to really narrow that scope here.
Marti Cardi, Esq.: Sure. Let me say at the outset that an employer has a right to get documentation to support the employee’s leave or accommodation request… but an employer can choose to take the employee's word for it and not require the type of documentation that they might be permitted to get. I caution that if you, as an employer take that approach, you need to be sure to be consistent and not require one employee to give documentation and, with another employee, take their word for it. You open yourself up to inconsistent treatment and possibility of discrimination charges [by doing that]. So adopt a uniform policy. And I do think the best practice is to get the documentation you're entitled to. If the employee is requesting time off to relocate to a safer location, you don't need to ask about medical appointments. Focus on like Lana said previously, focus on what you really need for the specific reason the employee is asking for time off. After you know what the employee is requesting. Check the state and local laws again to make sure that the documentation that you want is permitted and allowed under the law. And use common sense. For example, it's rare in these instances where you would need any actual medical records or information, but rather just need the verification that the employee has a medical appointment for a related purpose. Only ask what is needed for you to evaluate the request. Don't go beyond that. It's a case-by-case situation but use your judgment and consult with your employment attorney. There's that refrain again, and I think also Lana touched on this. But there should be just one central point of contact for the employee to work with and provide information and make sure that person is fully trained on applicable state laws and company policies and that such information is maintained separately and confidentially. Having one point of contact helps the employer and employee feel a little more protected and less like they are sharing with the world. They're very private details.
Heather Grimshaw: And one of the other pieces that you all have touched on throughout the conversation is the pressure on direct supervisors. How should employers prepare supervisors and leaders to handle these types of very sensitive events or issues?
Lana Ruprecht, Esq.: That's a great question, Heather, and it's really a practical issue that does come up. But high-level employers should just make sure that their leaders and supervisors understand internal policies, understand the applicable laws in the states where they have employees, and realize that employees can take leave falling into these categories, and they should be familiar with the law company policy and be able to issue spot if this comes up. We don't want to put this all on the supervisors to be managing the leave and taking charge of it. You don't want to put the supervisors as an employer into a position where they feel like they have to ask detailed questions and collect documentation from the employee who are requesting leave in this situation.
Marti Cardi, Esq.: And I would add there that supervisors don't even need to ask questions if they're not comfortable with it. Just call in HR to ask the questions if that's a preferred method and what they're more comfortable with.
Heather Grimshaw: I think that's really helpful guidance and I would assume an important message to convey out to those supervisors and managers. So I just wanted to thank you both so much for sharing your expertise on this very complicated and sensitive topic. Is there anything else you'd like to add before we wrap up?
Marti Cardi, Esq.: Heather I really would. I just want to give a closing thought or two here. Clearly, this is a complex situation that's only going to get more complex. And employers really need to be aware and educated on these expanding job protections for employees or victims or whose family member is a victim of domestic violence or these similar crimes. And also understand that it's really a stressful and often dangerous situation for an employee. And so the employer should give that employee as much support as they can, whether there's a law requiring it or not, be sensitive and supportive of that employee in a very difficult time, even if such leave or accommodations are not mandated by state or local laws. I think because it's so widespread now and so important, employers should consider adopting a company policy providing for such leaves and accommodations, even if not mandated by law where they have employees. I just can't say enough about the support that employees need and how much you will foster your employees’ wellbeing by being there and being supportive as an employer.
Heather Grimshaw: Absolutely. I think this is such a critical time for employers to really show that support, as you're noting there. Marti. Thank you both again so much. We appreciate your time and your guidance and the resources that you've mentioned throughout the podcast. We will have those URLs in the notes section so that people can follow up and see the checklist and some of the resources that both Marti and Lana have mentioned today.
Marti Cardi, Esq.: Thank you.
Lana Ruprecht, Esq.: Thank you.