New Domestic Violence Leave Expands Washington Employees' Right to Time Off

This Advisor column was originally published in September 2008.

The Washington legislature recently added a new form of leave to the already-existing constellation of grounds for protected time off work. Leave must now be provided to victims of domestic violence, sexual assault, or stalking (“domestic violence” or “abuse”) and their family members. The new form of leave is broad in its application – it applies to all employers in Washington, public or private, regardless of their size. Further, it is 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 use this form of leave. Following is a summary of the basic provisions of the new law (effective April 1, 2008) affecting domestic violence leave.

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.

Recommended Action for Employers

Domestic violence leave is 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 our Ringing In the New? post 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.