Military Family Leave and Domestic Violence Leave Required for all Washington State Employers
By April Upchurch Olsen
April 22, 2008
State law now requires all Washington employers to provide two new types of leave to eligible employees. The Military Family Leave Act allows spouses of military personnel to take at least fifteen days' leave of absence if a spouse will be deployed, or is on leave for deployment. The Domestic Violence Leave law provides leave for employees who are victims of domestic violence, sexual assault, or stalking to take care of legal or law enforcement needs or to seek medical assistance.
MILITARY FAMILY LEAVE ACT
The Military Family Leave Act passed by the 2008 Legislature and effective June 12, 2008, allows spouses of military personnel to take up to fifteen days unpaid leave while their spouse is on leave from deployment, or before and up to deployment. Leave is unpaid; however, employees may elect to substitute accrued time off if available. Upon return from leave, employees must be returned to the same or an equivalent position with respect to pay, benefits, and other terms and conditions of employment. Leave is available only during times of military conflict declared by the President or Congress.
The stated purpose of the new act is to support the families of military personnel serving in military conflicts, and to assure that military families have an opportunity to spend time together before deployment and during a leave from deployment.
Who is covered?
All Washington employers, regardless of size, must provide military family leave to employees who work an average of twenty or more hours per week.
What are the notice requirements?
An employee who wants to take a military leave must notify his or her employer within five business days of receiving a spouse's notice of an impending call to duty, an order to active duty, or a leave from deployment. The Act does not specify whether notice may be oral or in writing, or whether an employer may require a copy of a spouse's military orders. Until further guidance is promulgated by the Department of Labor and Industries, employers are encouraged to develop a policy describing notice requirements.
DOMESTIC VIOLENCE LEAVE LAW
The Domestic Violence Leave law allows victims of domestic violence, sexual assault, or stalking to take reasonable leave from work, paid or unpaid, to take care of legal or law enforcement needs and obtain health care. Family members of a victim may also take reasonable leave to help the victim obtain treatment or seek help. This new law took effect on April 1, 2008, and is intended to provide employees with an opportunity to maintain financial independence necessary to leave abusive situations, achieve safety, and minimize physical and emotional injuries, and to reduce the economic consequences of domestic violence, sexual assault, and stalking.
Who is covered?
All Washington employers, regardless of size, must provide domestic violence leave regardless of whether the individual is employed on a part-time, full-time, or temporary basis.
What does the law require?
Victims of domestic violence, sexual assault and stalking may take reasonable leave, intermittent leave, or leave on a reduced leave schedule under the following circumstances:
- to seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or employee’s family members. This may include preparing for or participating in any civil or criminal legal proceeding related to or because of domestic violence, sexual assault, or stalking;
- to seek treatment by a health care provider for physical or mental injuries caused by domestic violence, sexual assault, or stalking, or to attend to health care treatment for a victim who is the employee’s family member;
- obtain or assist a family member to obtain services from a domestic violence shelter, rape crisis center, or other social services program;
- participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future domestic violence, sexual assault, or stalking.
Employees are also entitled to leave to obtain, or to assist a family member to obtain, services from a domestic violence shelter, rape crisis center, or other social services program, or mental health counseling related to an incident of domestic violence, sexual assault, or stalking to which the employee or a family member was a victim. A family member is broadly defined to include an employee’s child, spouse, parent, parent-in-law, grandparent, or a person with whom the employee has a dating relationship. An employee may demonstrate a family relationship by providing a birth certificate, court document or other similar record, or by a statement from the employee seeking leave.
Domestic violence is not limited to violence between spouses or intimate partners. Rather, domestic violence encompasses physical harm or the infliction of fear of physical harm between family or household members, such as adult persons related by blood or marriage, or persons with a biological or legal parent-child relationship. The definition of domestic violence and household members is found in RCW 26.50.010.
Employees who take domestic violence leave must be returned to the position held prior to taking leave, or a position with equivalent benefits, pay, and other terms and conditions of employment, and at a workplace within twenty miles of the employee's previous work site. The return to work requirement does not apply (1) to employees who take leave from a staffing company if the individual is assigned on a temporary basis, or (2) if an employee was hired for a specific term or to perform work on a discrete project, the term or project is over, and the employer would not otherwise have continued to employ the employee.
Employers must also maintain an employee’s coverage under any health insurance plan for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had not taken the leave.
These leave rights are in addition to any additional rights provided by state or federal law. Thus, an employee, if the victim of domestic violence or sexual assault may be eligible for reasonable accommodation if the employee has a disability, or additional leave under the Family Medical Leave Act.
What are the notice and verification requirements?
Employees who request domestic violence leave must provide advance notice in accordance with the employer’s policy for requesting such leave, if any. If an employee cannot give advance notice because of an emergency or unforeseen circumstances due to domestic violence, sexual assault, or stalking, the employee or the employee’s designee must give notice by the end of the first day of leave.
Upon an employee’s request for leave, an employer may ask the employee to verify his or her need for leave by providing any of the following:
- a police report indicating the employee or employee’s family member was a victim;
- a court order providing protection to the victim;
- documentation from a healthcare provider, advocate, clergy, or an attorney;
- an employee’s written statement that the employee or employee’s family member is a victim and needs assistance.
An employee is required to provide only the information described immediately above to establish entitlement to leave. Moreover, an employer is expressly prohibited from requiring any additional disclosure that would compromise the employee’s safety or the safety of the employee’s family member in any way. All information provided by the employee when requesting leave, both written and oral, must be kept confidential including the fact that the employee or family member is a victim of domestic violence, sexual assault or stalking, or that the employee has requested or obtained leave.
WHAT STEPS SHOULD BE TAKEN IN LIGHT OF THESE NEW LAWS?
The enactment of these new leave laws will significantly increase a Washington employer’s exposure to civil actions by individuals who believe they have been denied an opportunity to take leave, or who believe they have been terminated or retaliated in response to a request for leave. The Department of Labor and Industries is authorized to investigate employee complaints and to enforce job protection for employees who need leave. Carefully drafted policies and supervisor education will assist employers in complying with these new obligations, and may minimize liability.
All employers with employees in the state of Washington should be mindful of these new requirements and should also revise existing leave policies to include military family leave and domestic violence leave. Employers faced with a leave request should also think about the interplay between state law, the Family Medical Leave Act, and the Washington Law Against Discrimination, all of which may necessitate additional leave or reasonable accommodation under certain circumstances.
Additionally, domestic violence can be very challenging for both the employer and the employee. Employers are encouraged to draft a leave policy now while there is sufficient time to develop and implement practices that work for the organization. In other words, don’t wait until an employee needs time off. We offer some practical suggestions below that should help you get started.
- Designate one or two people to receive leave requests, and notify employees who those individuals are in advance. Designated individuals must be familiar with the requirements of the law including the verification requirement and confidentiality obligation, and should be approachable to employees. Consider having designated employees sign a stand-alone confidentiality agreement specifically related to leave requests and information obtained from employees requesting leave.
- Maintain separate personnel files for information provided by an employee requesting leave. Information should be kept in a secured filing cabinet restricted to designated individuals. These records should NOT be kept in an employee’s personnel file and should not be released to third parties unless the organization is legally compelled to do so.
- Consider how you will explain the employee’s absence from work to a supervisor or co-workers given that requests for leave and the fact that the employee or the employee’s family member is a victim of domestic violence, sexual assault or stalking must remain confidential.
- Consider whether an employee’s domestic violence situation presents a danger to other employees, and what steps the Company should take if an employee’s spouse or household member comes to work in search of the employee.
Please feel free to contact April Upchurch Olsen (206.340.9597 or aolsen@grahamdunn.com) if you have any questions or wish to discuss this issue further.
