News

FLORIDA PASSES DOMESTIC VIOLENCE LEAVE LAW

Effective July 1, 2007 all Florida employers with more than fifty (50) employees must grant eligible employees up to three (3) days of leave to deal with issues of domestic violence. Employees who are eligible for the leave may request up to three (3) days in any twelve (12) month period if he/she or a family or household member is a victim of domestic violence. To qualify for leave, an employee must have worked for the employer for three (3) or more months.

The Florida legislature defines domestic violence very broadly: “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” F.S.A. 741.28

Additionally, this Leave law applies not only to your employee but if he/she or the victim is a family or household member. The Legislature has defined family or household member as including “spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.” F.S.A. 741.28.

Employers may decide if the leave is paid or unpaid. The law does specify that employers may require employees to exhaust their sick/vacation/PTO prior to the employee taking leave. Employers may also decide how much advance notice an employee must give in order to take the leave, but makes an exception for situations of “imminent danger” to the health or safety or the employee. The law also proscribes strict confidentiality requirements.

The law enumerates some examples of how the leave may be used for either the employee or the family/household member:

1. to seek an injunction for protection against domestic, sexual, dating or repeat violence;
2. to obtain medical care or mental health counseling services;
3. to obtain services from a victim-services organization (such as a rape-crisis center);
4. to make the employee’s home safe/secure from the perpetrator or find new housing;
5. to seek legal assistance or to attend/prepare for a court-related proceeding.

The law is clear that this does not alter the “at-will” nature of the employer-employee relationship, but also warns employers that they may not “interfere with, restrain, or deny the exercise of or any attempt by an employee to exercise any right” under the law. Employers may not discharge, demote, suspend, retaliate, discriminate, etc. against an employee for exercising their rights, but “an employee has no greater rights to continued employment or to other benefits and conditions of employment than if the employee was not entitled to leave” under this law.

Outstanding Issues:

(1) Employees must have worked for the employer for three (3) or more months. At issue is whether you must count prior employment (as you do with the Family Medical Leave Act). If I work for an employer for 2 years, leave, and then return, does my prior service count? No answers as of yet, but the most conservative approach is to credit the employee for past service.

(2) Employers may decide if the leave is paid or unpaid. This can become very tricky with your exempt employees and the salary basis test. You can require all employees (exempt and non-exempt) to first exhaust their sick/vacation/PTO time, but if you have an exempt employee who takes half a day for a court ordered mediation or 2 hours for a doctor’s appointment, you must still comply with the salary basis test and pay them a full day.

(3) Leave is three (3) days. There is no mention of how this is to be calculated. Is it three (3) full days, or 24 hours? Can an employee take 4 hours today and 6 hours on Friday afternoon? Can I require an employee to take a full day even though they may only need an hour of time? Without specific guidance, this has the makings of a FMLA-type intermittent leave administrative headache. Until there is clear guidance from either the Florida legislature or a Florida court, we recommend that employers require employees to take a minimum of ½ day increments to satisfy their leave requirement.

(4) Confidentiality Issues. We recommend that employers have a file separate from the employee’s personnel and medical files to contain this information with access strictly limited.

(5) Appropriate Advance Notice. Except of cases of imminent danger, employers can specify how much advance notice eligible employees must give them. We recommend five (5) working days.

(6) Substantiating the Need for Leave. Employers should be prepared to ask for court and legal documents, doctor appointment notices and/or excuses, etc. to substantiate the need for leave.

(7) Appropriate Contact. Who will be your company’s contact for employees who are victims of domestic violence? It should be limited to one (at most two) person who is professional and sensitive, is in a position to communicate confidentially with management (to discuss schedule changes, etc.), is familiar with internal resources (such as Employee Assistance Plans or medical coverage) and is not the “office gossip.”

(8) Family Medical Leave. Many instances of domestic violence could qualify as a “serious health condition” under the Family Medical Leave Act. Depending on the seriousness of the incident, make sure your company representative is knowledgeable about FMLA and that this person might likewise qualify for job protected leave. An unanswered question is whether or not an employer could insist that the three days of leave run concurrently with FMLA if the incident qualifies as FMLA qualifying. There are no answers as of yet. The most conservative approach to this issue is to grant an additional three days to your usual 12 week leave if a health care provider finds that the domestic violence qualifies as a serious health condition.

As a courtesy to our members, IER has a sample policy located in the “Resources” section of our website, www.ieronline.com. We will keep you posted to any new developments.

 © IER, Inc. 2007. All rights reserved. No duplication without prior written consent.