• Domestic Violence in the Louisiana Workplace, Part 7: Domestic Violence-related Leave
  • January 2, 2017 | Author: Rachael M. Coe
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - New Orleans Office
  • It is not a matter of if, but when an employer will be confronted with a challenging domestic violence-related issue in the workplace. Domestic violence not only causes lost productivity and increased costs for employers, but also raises a host of potential legal obligations and liabilities that employers cannot afford to overlook. In this monthly series, Labor and Employment attorney Rachael Coe will discuss the various ways that domestic violence impacts the Louisiana workplace and what employers need to know in order to protect their employees, their customers, and themselves.

    Domestic violence victims and their families may need time off of work for many reasons, from medical recovery to preparing for a court trial. Federal laws provide numerous types of leave for these situations, and some leave could be paid.

    Some domestic violence victims may be entitled to medical leave under the Americans with Disabilities Act (“ADA”) and/or the Family Medical Leave Act (“FMLA”). As discussed in the Employment Discrimination installment of this series, leave could be a reasonable accommodation for a domestic violence-related disability under the ADA, unless the accommodation creates an “undue hardship” for the employer. Leave can be an accommodation in some situations, such as permitting the employee to take time off for medical appointments and treatment or to recover from abuse.

    In addition, FMLA leave could apply to victims of domestic violence. The FMLA provides 12 weeks of unpaid leave for employees with a “serious health condition.” Department of Labor explains that “serious health conditions” covered by the FMLA may include serious health conditions caused by domestic violence, such as hospitalization for physical injuries or treatment for mental conditions. Therefore, employers covered by the FMLA could encounter domestic violence-related conditions that activate these leave provisions.

    The Department of Labor’s recent rule establishing paid sick leave for federal contractors greatly expanded leave availability for domestic violence victims and their families. (29 CFR § 13.1, et seq.). On September 29, 2016, the Department of Labor issued its Final Rule implementing Executive Order 13706, which establishes up to 56 hours (7 days) of paid leave per year for employees of federal contractors-including leave for domestic violence victims to obtain counseling or assistance, relocate, take legal action and prepare for legal proceedings, or to assist family members who are domestic violence victims.

    The regulation limits the federal contractor’s ability to obtain documentation of the need for domestic violence-related leave only if the employee is absent for 3 or more consecutive work days. The verification need not come from a medical professional; instead, the verification may come from “a health care provider, counselor, representative of a victim services organization, attorney, clergy member, family member, or close friend,” as well as self-certification. 29 CFR § 13.5. As long as the person certifying the leave is “involved in providing or assisting” the domestic violence victim for the reasons noted above, they can provide a certification. The federal contractor may require an employee assisting a relative to provide documentation of the relationship. Importantly, the federal contractor is required to maintain confidentiality about domestic violence-related leave.

    Federal leave laws permit victims of domestic violence, and even their families, to obtain leave for several purposes that are all related to domestic violence-particularly for employees of federal contractors. Employers must keep these leave options and protections in mind when assisting an employee coping with a domestic violence situation.