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.