Q: An employee who suffered a domestic violence incident has been absent from her NJ job for 10 days, first to obtain medical treatment, then due to her temporary relocation to a safe house, and later, to obtain counseling. The employer is sympathetic but her absence is affecting business operations. Must the employer continue to hold the employee’s job?
A: Unless the employee is entitled to paid time off under the employer’s policies, the answer is no – for now. Governor Christie just signed the New Jersey Security and Financial Empowerment Act ("NJ SAFE Act") which requires certain employers to provide unpaid leave to employees affected by domestic or sexual violence. The new law takes effect on October 1, 2013.
Does the NJ SAFE Act apply to your business? NJ businesses that employ 25 or more employees must comply with NJ SAFE Act.
What benefits are provided by the NJ SAFE Act? Eligible employees are entitled to 20 days of unpaid leave time to allow the victim or parent, child, spouse, or civil partner of the victim to seek medical attention for physical or psychological injuries, obtain services from a victim services organization, pursue psychological or other counseling, arrange for temporary or permanent relocation to increase safety, obtain legal assistance and attend, participate in, or prepare for a criminal or civil court proceeding. The leave can be taken within one year of the incident, and used intermittently in intervals of no less than one day. If the employee has not exhausted the allotted 20 days for the 12-month period, each violent incident would constitute a separate incident for which an employee victim is entitled to unpaid leave.
What employees are covered? An employee who is the victim of domestic violence or sexual assault or whose parent, child, spouse, domestic partner or civil union partner was the victim is covered by the NJ SAFE Act if the employee has been employed for at least 12 months by an employer and has worked a minimum of one-thousand hours during the 12 month period immediately preceding the incident.
Can the employer request that the employee provide documentation of the domestic or sexual violence? Yes. Such documentation may be a domestic violence restraining order, a letter or other writing from the county or municipal prosecutor documenting the domestic or sexual violence, documentation of the conviction of the aggressor for the domestic or sexual violence, medical documentation of the domestic violence or sexually violent offense, certification from a certified domestic violence specialist or the director of a designated domestic violence agency or Rape Crisis Center that the person is a victim of domestic or sexual violence; or other documentation or certification by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or related individual in coping with domestic or sexual violence. In situations where it is foreseeable that leave will be necessary, employees must provide the employer with written notice as far in advance as is reasonable and practical under the circumstances.
Can the employer require the employee to use accrued PTO and other leave concurrently with the NJ SAFE Act leave period? Yes. Under the law, an employer may require an employee (or the employee may elect) to use accrued paid vacation leave or personal time during any part of the 20 day period of unpaid leave authorized by the NJ SAFE Act. In such a case, paid leave would run concurrent with the unpaid leave. Similarly, when an employee requests leave for a reason covered by the NJ SAFE Act and the New Jersey Family Leave Act or the Federal Family and Medical Leave Act, the leave runs simultaneously.
Must covered employers provide employees with notice of their rights under the NJ SAFE Act? Yes. Covered employers must conspicuously post notices describing employee rights and obligations pursuant to the NJ SAFE Act. New Jersey's Commissioner of Labor and Workforce Development will soon determine the form and manner of such notices.
What remedies are provided by the NJ SAFE Act? An employee may bring a civil action against an employer who discharges, harasses or otherwise discriminates or retaliates against an employee who has taken or requested leave as long as the action is brought within one year of the alleged violation. The NJ SAFE Act provides for a civil fine of between $1,000 and $2,000 for the employer's first violation and additional fines of up to $5,000 for each subsequent violation; an injunction restraining any continued violation of the law; reinstatement of the employee to the same or equivalent position; reinstatement of benefits and seniority rights; compensation for lost wages, benefits or other remuneration; and payment of reasonable costs and attorney's fees. Common law tort remedies are also available.
The NJ SAFE Act takes effect on October 1, 2013. NJ employers should prepare to comply with its requirements. This means reviewing existing leave policies for consistency with the new law and updating or adjusting such policies, as well as obtaining the proper notices for posting in the workplace.
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