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On August 8, Massachusetts enacted an “emergency law” requiring, among other things, that employers with fifty or more employees notify each employee of substantial, newly created rights and responsibilities relating to domestic violence leave.¹ This statute thus creates a need for immediate action by covered employers.

According to the new law, covered employers must permit their employees to take up to fifteen (15) days of leave from work in any twelve (12) month period whenever the employee or the employee’s family member is a victim of abusive behavior and the leave is used to (a) seek or obtain medical attention, counseling, victim services, or legal assistance; (b) secure housing; (c) obtain a protective order from a court; (d) appear in court or before a grand jury; (e) meet with a district attorney or other law enforcement official; (f) attend child custody proceedings; or (g) address other issues directly related to the abusive behavior against the employee or family member.

Employers have sole discretion to determine whether such leave will be paid or unpaid.

Also, employers can require that an employee exhaust all annual, vacation, personal, and sick leave before requesting or taking domestic violence leave.

Except in cases of imminent danger to health or safety, an employee seeking domestic violence leave is required to provide advance notice of the leave as required by the employer's leave policy. If, however, there is a threat of imminent danger to health or safety, the employee can notify the employer within three (3) workdays that domestic violence leave was or is being taken.

Employers are allowed to require documentation showing the need for domestic violence leave. And whenever an unscheduled absence occurs, an employer must refrain from negative action if the employee provides appropriate documentation (as described in the statute) within thirty (30) days from the last consecutive day of unauthorized absence.

As noted above, immediate action by covered employers is necessary to ensure compliance with the law. Penalties for noncompliance can be severe. An employee can file a complaint with the attorney general, and the attorney general can enforce the employee’s rights through injunctive or other equitable relief.

Also, an employee can file a civil action for injunctive relief, damages incurred, and lost wages and other benefits.² And according to the statute, if the employee prevails in such a civil action, he or she “shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and . . . the costs of the litigation and reasonable attorneys’ fees.”³

For most employers, the best way of ensuring compliance with their new statutory obligations will involve creating and distributing a domestic violence leave policy that explains the new employee rights. Appropriate training also is advisable, particularly for managers.

In addition to points discussed above, the new policy and training should cover the following aspects of the new law:

- “Abuse” is defined as (i) attempting to cause or causing physical harm; (ii) placing another in fear of imminent serious physical harm; (iii) causing another to engage involuntarily in sexual relations by force, threat or duress or engaging or threatening to engage in sexual activity with a dependent child; (iv) engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; (v) depriving another of medical care, housing, food or other necessities of life; or (vi) restraining the liberty of another.

- “Abusive behavior” includes domestic violence, stalking, sexual assault, and kidnapping.

- “Domestic violence” is defined as abuse against an employee or the employee’s family member by (a) a current or former spouse of the employee or the employee’s family member; (b) a person with whom the employee or the employee’s family member shares a child in common; (c) a person who is cohabitating with or has cohabitated with the employee or the employee’s family member; (d) a person who is related by blood or marriage to the employee; or (e) a person with whom the employee or employee’s family member has or had a dating or engagement relationship.

- “Family member” includes (a) persons married to one another; (b) persons in a substantive dating or engagement relationship and who reside together; (c) persons having a child in common; (d) a parent, step-parent, child, step-child, sibling, grandparent or grandchild; or (e) persons in a guardianship relationship.

- Any domestic violence documentation provided to an employer to secure leave can be maintained by the employer in the employee’s employment record but only for as long as is required to make a determination as to whether the employee is eligible for leave.

- All information related to the employee's leave must be kept confidential by the employer; such information can be disclosed only to the extent that it is (a) requested or consented to, in writing, by the employee; (b) ordered to be released by a court of competent jurisdiction; (c) otherwise required by applicable federal or state law; (d) required in the course of an investigation authorized by law enforcement, including but not limited to, an investigation by the attorney general; or (e) necessary to protect the safety of the employee or others employed at the workplace.

- Employers cannot discharge or discriminate against an employee for exercising domestic violence leave rights.

- Nor can employers coerce, interfere with, restrain, deny the exercise of, or attempt to deny the exercise of those rights.

- The taking of domestic violence leave cannot result in the loss of any employment benefit accrued prior to the date on which the leave commenced.

- Upon the employee’s return from domestic violence leave, he or she is statutorily entitled to restoration to his or her original job or an equivalent position.

¹ The preamble to the new legislation (Senate No. 2334) explains that it is an “emergency law, necessary for the immediate preservation of the public safety.” The bulk of the provisions relating to domestic violence leave generally are codified at M. G. L. c. 149, § 52E. Section 52E(k) requires that “[e]mployers with 50 or more employees shall notify each employee of the rights and responsibilities provided by this section including those related to notification requirements and confidentiality.”

² M. G. L. c. 149, § 150.

³ Id.

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.