Tag Archives: domestic violence

Missouri Employers Now Required To Provide Unpaid Leave To Victims Of Domestic Or Sexual Violence

Contributed by Brian Wacker, September 24, 2021

Words ‘Leave of Absence’ on white paper

As a part of Missouri’s new Victims Economic Safety and Security Act (VESSA), employers in the state with at least 20 employees must now provide unpaid leave to employees who are victims of domestic or sexual violence, or who have family or household members who are victims of the same.  Effective August 28, 2021, all covered employers are required to notify employees of their right to unpaid leave under the law by or before October 27, 2021.  The Missouri Department of Labor has published a poster which, if prominently posted, will meet this requirement. 

The new mandate is designed to provide domestic and sexual abuse victims, and their families, the opportunity to:

  • Seek medical attention for, or recover from, physical, or psychological injuries;
  • Obtain victim services;
  • Obtain counseling;
  • Participate in safety planning;
  • Relocate, temporarily, or permanently;
  • Take actions to increase safety for themselves or family members; and/or
  • Seek legal assistance.

Employees seeking such leave must provide their employer at least 48 hours’ advance written notice, unless doing so is not practicable under the circumstances.  To determine if a requesting employee is eligible for VESSA leave, an employer may require the employee to provide certification that either the employee or his/her family or household member is the domestic or sexual violence victim seeking the type of assistance described above.  This certification can come by way of:

  • Written documentation from a victims services organization, attorney, clergy member, or medical professional;
  • Police or court records; or
  • Other corroborating evidence.

Employees are required to provide such certification within a reasonable period of making the request for leave.  However, when an unscheduled absence occurs, an employer cannot take adverse action against an employee when, upon the employer’s request , the employee does provide this information within a reasonable time.

Again, VESSA only applies to employers with 20 or more employees and then dictates that the amount of leave available to eligible employees is based on the number of the employer’s employees:

  • 0-19 employees: no leave required
  • 20-49 employees: 1 week of unpaid leave required per year
  • 50+ employees: 2 weeks of unpaid leave required per year

If eligible, an employee may take this unpaid leave intermittently or on a reduced work schedule.  Any eligible employee must be returned to the same, or similarly equivalent, position upon return to work.  Finally, if the employee taking leave is covered by an employer’s group health plan, the employee’s (and any covered family or household member’s) coverage must be maintained during the eligible leave.  However, under certain circumstances, the premiums paid by the employer during the leave may be recovered from the employee if  they fail to return to work once the leave period has expired.            

The bottom line is that this is a new unpaid leave mandate for nearly all Missouri employers.  Employers would be well advised to post the VESSA notice as soon as possible and update their employee handbooks to reflect these new requirements.

New Jersey Enacts New Domestic Violence and Sexual Assault Leave Law Effective October 1, 2013

Contributed by Sara Zorich

On July 17, 2013, Chris Christie, Governor of New Jersey, signed into law the “New Jersey Security and Financial Empowerment Act” (“NJ SAFE Act”) to assist victims of domestic violence and sexual assault.  The NJ SAFE Act is applicable to private employers in New Jersey that have 25 or more employees and is effective as of October 1, 2013.  Pursuant to the Act, employers must display a conspicuous notice of employees’ rights and obligations under the Act, in a form to be provided by the Department of Labor and Workforce Development, and to use “other appropriate means to keep its employees informed.”  No notice is yet available from the Department of Labor and Workforce Development.

Eligible employees (defined by the Act as those who have been employed for at least 12 months and have at least 1,000 base hours during the 12-month period immediately preceding the leave) in New Jersey are entitled to up to 20 days of unpaid leave, as needed, within one year of the incident, if they or their spouse, parent, child, domestic partner or civil union partner are a victim of domestic violence or sexual assault.  The leave must be taken related to the domestic violence or sexual assault for any one of the following purposes: (1) seeking medical attention for, or recovering from, physical or psychological injuries; (2) obtaining services from a victim organization; (3) obtaining psychological or other counseling; (4) participating in safety planning, relocation, or taking other actions to increase safety; (5) seeking legal assistance or remedies to ensure health and safety; or (6) attending, participating in or preparing for a criminal or civil court proceeding relating to the incident.

If the leave is foreseeable, employees must provide employers with as much written notice as is reasonable and practical of the need for leave under NJ SAFE Act.  Employers may require or employees may choose to exhaust accrued paid leave (i.e. vacation, PTO, sick time, etc.) during their leave provided by NJ SAFE Act before using unpaid time. 

Employers may require documentation to support the leave for which any of the following are sufficient: (1) restraining order or other documentation of relief issued by the court; (2) letter from the prosecutor; (3) documentation of offender’s conviction; (4) medical documentation of incident; (5) certification from a certified Domestic Violence Specialist, director of designated domestic violence agency or Rape Crisis Center or (6) other documentation by a social worker, clergy, shelter worker or other professional assisting with the incident.  All information provided must be kept confidential by the employer and employers may not retaliate or discriminate against an employee for taking leave under the Act.

Appellate Court Issues First Published Decision on Illinois’ VESSA Law: Affirms Decision in Favor of Employer

Contributed by Sara Zorich & Jeff Risch

Illinois’ Victim’s Economic Security and Safety Act (VESSA) became effective on August 25, 2003 (820 ILCS 180 et. seq.). VESSA was enacted to:  1) promote the State’s interest in reducing domestic or sexual violence by enabling victims to maintain financial independence to leave abusive situations and to reduce the economic consequences of such violence to employers and employees; and 2) protect the employment and civil rights of employees or their families who are victims of domestic or sexual violence. VESSA provides employees working for both small and large employers, with special leave entitlements and workplace protections. 

Since the law’s enactment, all VESSA related controversies have been contained within the Illinois Department of Labor (IDOL) — the lone State agency that administers, enforces and adjudicates such claims.  However, on February 15, 2012, the Appellate Court for the 2nd District of Illinois, affirmed an IDOL decision that concluded when a victim is not utilizing a leave of absence for purpose permitted by VESSA, then that victim is not protected under the lawSee Sustatia v. Illinois Department of Labor et. al. No. 2-10-1230.

VESSA provides that an employee working for an employer with at least 15, but not more than 49 employees, shall be entitled to a total of 8 workweeks of unpaid leave during any 12-month period. Employees working for an employer with at least 50 employees are entitled to a total of 12 workweeks of unpaid leave during any 12-month period. Employers are also specifically prohibited from interfering with, restraining, or denying an employee’s attempt to exercise any rights under the law.

An employee may take VESSA leave to:

  1. Seek medical attention for, or recovery from, physical or psychological injuries caused by domestic or sexual violence to the employee or employee’s family or household member;
  2. Obtain victim services for the employee or employee’s family or household member;
  3. Obtain psychological or other counseling for the employee or the employee’s family or household member;
  4. Participate in safety planning, including temporary or permanent relocation or other actions to increase the safety of the victim from future domestic or sexual violence; or
  5. Seek legal assistance to ensure the health and safety of the victim, including participating in court proceedings related to the violence.

Under the Act, an employer may require that the employee certify that he/she is a victim of domestic or sexual violence and that the leave is for a purpose enumerated in the VESSA statute with a certification and additional documentation including documentation from a professional assisting in the proceeding, a police or court record or other corroborating evidence.

The facts of this case are very detailed. The following serves as a mere summary of conclusory facts adduced by the Appellate Court:

Sustatia requested leave from work to attend a May 8, 2006 court proceeding regarding a domestic battery charge she brought against her boyfriend. West Suburban Bank, her employer, requested that Sustatia corroborate her leave request and sign a sworn statement that the leave was related to her participation in a court proceeding regarding her domestic abuse charge.  On May 23rd, Sustatia signed a sworn statement and provided a letter from her non-physician therapist that she was in court on May 8th. West Suburban asked for clarification as to how Sustatia’s therapist was able to corroborate her claim that she was in court on May 8th but none was provided. After numerous and exhaustive requests for the corroborating documentation, the bank’s Vice President of Human Resources requested a meeting with Sustatia regarding the documentation supporting her claim. After numerous attempts for clarification, and becoming increasingly suspicious of Sustatia’s need for leave from work, and the fact that Sustatia failed to appear for a “last chance” meeting, she was terminated on August 16, 2006 for insubordination and misconduct for failure to follow management’s directions in providing written corroboration to validate her alleged court appearance on May 8th.

The plaintiff filed a claim with the IDOL against West Suburban for alleged violations of VESSA. A lengthy hearing was held and the Director of the IDOL found that Sustatia’s testimony was not credible concerning her alleged presence and participation in court on May 8, 2006. The Director further held that Sustatia’s leave of absence on May 8, 2006 was not valid under VESSA since she did not miss work for a statutory enumerated purpose. On February 15, 2012, the Appellate Court upheld the Director’s finding that Sustatia failed to establish she was entitled to leave under VESSA and thus West Suburban had not committed any violation of the Act.

While this case is very fact specific, it establishes that employers have the ability and right to require an employee to comply with statutory provisions of VESSA in order to be eligible for leave under the Act. Employees may only take VESSA leave for the enumerated statutory purposes and employees requesting leave for other purposes are not protected under the Act. Illinois employers should be familiar with the Act and its limitations on employee leave.