The Family and Medical Leave Act, or “FMLA,” is a federal labor law that was passed in 1993. The FMLA requires eligible employers to provide their employees with job protected and unpaid leave for qualified medical and family circumstances. The Act also requires that covered employers maintain the health insurance benefits for all eligible workers, so it is as if they were still actively working. During this time, the employee’s position is protected and they cannot legally be terminated.
As a federal law, the Act preempts state laws, including when those laws conflict with each other. Meaning, employees who work in states that offer little or no family and medical leave could still be protected under the FMLA. While some states may have laws providing more coverage, most states do not provide more leave than what is mandated by federal law.
Additionally, not all employers are required to provide the benefits that are required by the FMLA. Federal law states that employers are only required to provide all eligible employees with FMLA leave if the employer meets one of the following criteria:
- The employer is a state, local, or federal governmental agency;
- The employer is a private business conducting interstate commerce, with fifty or more employees, that work twenty or more weeks in one year; or
- The employer is involved in commerce, or an industry that affects commerce. Nearly every business meets the requirement of being commerce or affecting commerce.
Employers cannot legally terminate an employee who takes family or medical leave for any reason as outlined in the FMLA, and employees who are working for employers covered by the FMLA have a right under federal law to take leave if they qualify. Employers cannot reprimand them for taking this leave, and the employer may not discriminate when allowing FMLA leave.
What Is Domestic Violence Leave?
The term domestic violence refers to a specific type of violence between adults who are in a close relationship, but especially spouses. Domestic violence can be either physical or psychological, with examples of psychological domestic violence including threats and degrading language.
Most states have determined that domestic abuse includes any conduct that causes or threatens to cause injury between family members, spouses, and/or residents of the same household. Domestic violence can also be described as behavior used by one person in a relationship that is used to control the other person. The behavior may happen frequently, or only occasionally, as either can constitute domestic violence.
Some specific examples of domestic violence include, but may not be limited to:
- Emotional abuse, such as name calling or put downs;
- Preventing a partner from contacting their family and/or friends;
- Stopping a partner from obtaining and/or keeping a job;
- Actual and/or threatened physical harm, including hitting, biting, slapping, hair pulling, etc.;
- Denying someone medical attention who needs it;
- Forcing someone to do drugs or drink alcohol;
- Stalking and/or intimidation;
- Harassment; and
- Economic and/or sexual abuse.
It is imperative that if you are experiencing a domestic violence emergency, and fear for your safety, that you contact 911 or your local police. Unfortunately, because domestic violence is a common occurrence, emergency services are prepared to intervene. There may be local domestic violence hotlines that provide assistance as well.
Additionally, domestic violence shelters exist to provide safety to those who are trying to leave a violent situation. However, such shelters generally only accept female victims and their children, meaning that transgender and male victims of domestic violence may not receive the help that they need.
Domestic violence leave is permitted leave from work for those who are victims of domestic violence. Whether the domestic violence leave is granted to the victim largely depends on the state in which you reside. A total of fifteen states have passed laws which allow victims of domestic violence to take some time off work in order to secure their safety and recover. These states include:
- California;
- Hawaii;
- New York;
- Washington; and
- The District of Columbia.
What Is Required For Obtaining Domestic Violence Leave?
The requirements for obtaining domestic violence leave vary by state. Generally speaking, employees must give “reasonable advance notice” that they will need to take leave, unless such notice is not feasible given the circumstances. It is important to note that some states further require employees to provide written proof that their leave is due to experiencing domestic violence.
What is considered to constitute a permissible reason for taking domestic leave largely depends on individual state laws. Some states allow victims to take time off, but only for very specific types of medical care or psychological planning. Others allow leave for relocation, or if you are seeking a restraining order against your abuser.
How much time you can take may be a set period of time, such as days or weeks. Some states allow for a “reasonable” amount of leave. In some states, such as Florida, you must first exhaust all paid vacation and personal leave prior to taking domestic violence leave.
Currently, no state requires that domestic leave be paid. However, the District of Columbia has been paying its employees who take domestic leave, and some states allow employees to use their paid leave if they take domestic leave.
Can Domestic Violence Victims Take FMLA Leave?
To reiterate, the FMLA allows eligible employees to take up to 12 weeks of leave every 12 months for:
- Serious health conditions;
- Caring for a seriously ill family member; and/or
- Caring for a new child.
If you experience psychological trauma as a result of domestic violence, which requires you to take leave in order to receive treatment, you may be entitled to FMLA leave as your domestic violence leave. It is imperative to note that this leave is unpaid, although employees are generally allowed to use their accrued paid sick or vacation leave while on FMLA leave.
What Else Should I Know About Domestic Violence In General?
First and foremost, it is not ever the victim’s responsibility to protect themselves from a violent person. It is always the offender’s responsibility to avoid abusive behavior. That being said, if you are facing domestic abuse, there are some steps you should consider in order to take care of yourself and prevent further harm from being inflicted. Some of these safety measures can include but are not limited to:
- Identify safe spaces both inside and outside of your home, in which you can call for help or escape to;
- If you are able, notify your friends and family that you are in danger and need immediate help;
- Memorize a list of emergency contacts; and
- Consider obtaining a restraining or protective order.
A restraining order is sometimes referred to as a protective order in some states, and is a court order restricting one person from harming another person. Restraining orders generally require the offending individual to do, or refrain from doing, a specific action. An example of this would be requiring the abuser to stay fifteen feet away from the victim, or to cease all contact.
These orders are generally easier to obtain if you have a police report to serve as evidence. In most states, domestic violence calls have a mandatory arrest requirement; meaning, if the police are called to a scene, they must arrest at least one person who was involved in the dispute. It is imperative to be prepared and show any evidence that you have about your abuser’s history of domestic violence in an effort to avoid being the arrested party.
Many people mistakenly believe that domestic violence laws only protect a wife from being physically assaulted by her husband. This is untrue, as domestic violence laws have expanded to protect other groups of people. Such groups include but may not be limited to:
- Spouses of any gender;
- Significant others of any gender, such as boyfriends and girlfriends;
- Elders who are being abused by their family members; and
- Roommates who are abusing each other.
Do I Need An Attorney For Help With Domestic Violence Leave Laws?
Any type of leave that is protected by law must be given by an employer to an employee that qualifies for that leave. However, some employers may not be aware of your right to have domestic violence leave when they deny your request for such leave.
An employment lawyer can help you assert your rights to domestic violence leave if a request for domestic violence leave is wrongfully denied. Additionally, an attorney will also be able to represent you in court, as needed.
