New Domestic Violence and Military Spouse Leave Expand Washington Employees’ Right to Time Off

by Jillian Barron and Jeff James

In this year’s short session, the Washington legislature added two new forms of leave to the already-existing constellation of grounds for protected time off work. First, leave must now be provided to victims of domestic violence, sexual assault, or stalking (“domestic violence” or “abuse”) and their family members. Second, all employers must permit spouses of deployed military personnel to take leave under specified circumstances, and public employers must now provide up to 21 days of paid military leave. The two new forms of leave are broad in their application—each applies to all employers in Washington, public or private, regardless of their size. Further, both forms of leave are available from an employee’s first day on the job—an employee need not have worked for an employer for any length of time prior to taking time off. As with other types of protected leave, employers are prohibited from harassing or discriminating against employees who exercise their rights to either kind of leave. Following is a summary of the basic provisions of the two new laws.

Domestic Violence Leave (effective April 1, 2008)

Eligibility: Protected leave is available to employees who are victims of domestic violence, sexual assault, or stalking, or have a family member who is a victim of such abuse. For this purpose, family members include the employee’s spouse, children, parents, parents-in-law, grandparents, and “a person with whom the employee has a dating relationship.”

Leave Entitlement: An eligible employee may take “reasonable” leave, including leave on an intermittent or reduced-schedule basis, to engage in specified remedial activities relating to the abuse, including: participating in legal proceedings; seeking medical treatment or mental health counseling; obtaining social services; or taking other actions to increase the safety of the employee and her/his family members. The law does not define what constitutes a “reasonable” amount of leave or set any cap on the amount of leave that may be taken.

Notice: The employee must give advance notice of her/his intent to take leave, consistent with the employer’s stated policy for requesting leave, if any. If advance notice cannot be given due to an emergency or unforeseen circumstances, notice must be provided no later than the end of the first day leave is taken.

Verification and Confidentiality: The employer may request verification that the employee or her/his family member is a victim of abuse, and that the leave is for one of the covered remedial activities. Verification is satisfied by one or more of the following: (1) a police report indicating the employee or family member was a victim of abuse; (2) a court order protecting the employee or family member; (3) documentation from an attorney, clergy member, medical provider, or other professional from whom assistance was sought; or (4) the employee’s own written statement that s/he or a family member is a victim and needs the leave to seek assistance. The employer must maintain the employee’s provided information as confidential and may not require the employee to disclose information beyond the verification material listed above.

Pay and Benefits During Leave: The employee may elect to use sick leave, compensatory, or other paid time off, or may take unpaid leave. To the extent allowed by law (for example, by the applicable benefits plan), the employer must maintain the employee’s health care coverage as if the employee had not taken leave.

Return to Work: The employee must be restored to the position s/he held before the leave commenced, or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. The right to restoration does not apply if the employee worked for the employer through a temporary staffing company, or was hired for a specific term or project that has concluded.

Military Spouse Leave (effective June 1, 2008)

Eligibility: Protected leave is available to employees who work an average of twenty or more hours per week.

Leave Entitlement: During times of military conflict, an eligible employee who is the spouse of a member of the national guard, reserves, or the U.S. armed forces may take a total of fifteen days of leave per deployment during the period between the time her/his spouse has been notified of a call to active duty and the time of deployment, or while the spouse is on leave from deployment.

Notice: An employee must give the employer notice of her/his intent to take this leave within five business days of receiving official notice of the spouse’s call to active duty or release on leave from deployment.

Pay and Benefits: Military spouse leave is unpaid, but the employee may elect to substitute any available accrued paid leave to which s/he is entitled. If the employee is not eligible for continued employer-paid health care coverage during the leave, s/he must be allowed to continue coverage at her/his own expense in accordance with state and federal law.

Return to Work: The employee must be restored to the position s/he held before the leave commenced, or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment within twenty miles of her/his workplace prior to taking leave.

Increase in Paid Military Leave for Public Employees (effective June 1, 2008)

Starting June 1, 2008, public employers must provide up to 21 days of paid leave, an increase from the prior requirement to provide up to 15 days of paid leave.

Recommended Action for Employers

Domestic violence and military spouse leave are in addition to other forms of leave provided by state and federal law, such as the federal and state family and medical leave acts (FMLA and FLA), the Washington Family Care Act, and pregnancy disability leave under Washington law. The growing number of federal and state leave entitlements, each with somewhat different parameters, can be difficult for employers to track (see January 2008 Employment Note regarding the intersection of FMLA, FLA, and pregnancy disability leave). To ensure compliance with legal obligations, while also retaining the right to require employees to adhere to notification and other prerequisites for taking leave, employers should review and update their leave policies. Legal counsel can assist employers in meeting their responsibilities and avoiding potential pitfalls.

 

This Employment Law Note is written to inform our clients and friends of developments in labor and employment relations law. It is not intended nor should it be used as a substitute for specific legal advice or opinions since legal counsel may be given only in response to inquiries regarding particular factual situations. For more information on this subject, please call Sebris Busto James at (425) 454-4233.