378-72. Leave of absence for domestic or sexual violence
(a) An employer employing fifty or more employees shall allow an employee to take up to thirty days of unpaid victim leave from work per calendar year, or an employer employing not more than forty-nine employees shall allow an employee to take up to five days of unpaid leave from work per calendar year, if the employee or the employee's minor child is a victim of domestic or sexual violence; provided the leave is to either:
(1) Seek medical attention for the employee or
employee's minor child to recover from physical or psychological injury or
disability caused by domestic or sexual violence;
(2) Obtain services from a victim services
organization;
(3) Obtain psychological or other counseling;
(4) Temporarily or permanently relocate; or
(5) Take legal action, including preparing for or
participating in any civil or criminal legal proceeding related to or resulting
from the domestic or sexual violence, or other actions to enhance the physical,
psychological, or economic health or safety of the employee or the employee's
minor child or to enhance the safety of those who associate with or work with
the employee.
(b) An employee's absence from work that is
due to or resulting from domestic abuse or sexual violence against the employee
or the employee's minor child as provided in this section shall be considered
by an employer to be a justification for leave for a reasonable period of time,
not to exceed the total number of days allocable for each category of employer
under subsection (a).
"Reasonable period of time" as used
in this section means:
(1) Where due to physical or psychological injury to
or disability to the employee or employee's minor child, the period of time
determined to be necessary by the attending health care provider, considering
the condition of the employee or employee's minor child, and the job
requirements; and
(2) Where due to an employee's need to take legal or
other actions, including preparing for or participating in any civil or
criminal legal proceeding, obtaining services from a victim services
organization, or permanently or temporarily relocating, the period of time
necessary to complete the activity as determined by the employee's or
employee's minor child's attorney or advocate, court, or personnel of the
relevant victim services organization.
(c) Where an employee is a victim of domestic
or sexual violence and seeks leave for medical attention to recover from
physical or psychological injury or disability caused by domestic or sexual
violence, the employer may request that the employee provide:
(1) A certificate from a health care provider
estimating the number of leave days necessary and the estimated commencement
and termination dates of leave required by the employee; and
(2) Prior to the employee's return, a medical
certificate from the employee's attending health care provider attesting to the
employee's condition and approving the employee's return to work.
(d) Where an employee has taken not more than
five calendar days of leave for non-medical reasons, the employee shall provide
certification to the employer in the form of a signed statement within a
reasonable period after the employer's request, that the employee or the
employee's minor child is a victim of domestic or sexual violence and the leave
is for one of the purposes enumerated in subsection (a). If the leave exceeds
five days per calendar year, then the certification shall be provided by one of
the following methods:
(1) Certified
or exemplified restraining orders, injunctions against harassment, and
documents from criminal cases;
(2) Documentation from a
victim services organization or domestic or sexual violence program, agency,
or facility, including a shelter or safe house for victims of domestic or
sexual violence; or
(3) Documentation from a
medical professional, mental health care provider, attorney, advocate, social
worker, or member of the clergy from whom the employee or the employee's minor
child has sought assistance in relation to the domestic or sexual violence.
(e) If certification is required, no leave
shall be protected until a certification, as provided in this section, is
provided to the employer.
(f) The employee shall provide the employer
with reasonable notice of the employee's intention to take the leave, unless
providing that notice is not practicable due to imminent danger to the employee
or the employee's minor child.
(g) Nothing in this section shall be construed
to prohibit an employer from requiring an employee on victim leave to report
not less than once a week to the employer on the status of the employee and
intention of the employee to return to work.
(h) Upon return from leave under this section,
the employee shall return to the employee's original job or to a position of
comparable status and pay, without loss of accumulated service credits and
privileges, except that nothing in this subsection shall be construed to
entitle any restored employee to the accrual of:
(1) Any seniority or employment benefits during any
period of leave, unless the seniority or benefits would be provided to a
similarly situated employee who was on leave due to a reason other than
domestic or sexual violence; or
(2) Any right, benefit, or position of employment to
which the employee would not have otherwise been entitled.
(i) All information provided to the employer
under this section, including statements of the employee, or any other
documentation, record, or corroborating evidence, and the fact that the
employee or employee's minor child has been a victim of domestic or sexual
violence or the employee has requested leave pursuant to this section, shall be
maintained in the strictest confidence by the employer, and shall not be
disclosed, except to the extent that disclosure is:
(1) Requested or consented to by the employee;
(2) Ordered by a court or administrative agency; or
(3) Otherwise required by applicable federal or state
law.
(j) Any employee denied leave by an employer
in wilful violation of this section may file a civil action against the
employer to enforce this section and recover costs, including reasonable
attorney's fees, incurred in the civil action.
[L 2003, c 60, pt of §2; am L
2020, c 19, §7]
