We know from last week’s post (click here for review) that domestic violence does affect employers. We know that unfortunately, when one of your employees is a domestic violence victim, your company’s productivity, bottom line and even its other employees and customers/clients may also suffer in some way. Some employers conclude that, despite it not being the victim’s fault, that the victim’s presence in their company is the cause of these issues. Some employers, reasoning that the victim is an employee-at-will, either contemplate or even actually terminate the employee. Problem solved? Don’t count on it. Employers who go this route may have traded one set of problems for another. More on that, after the jump…
Many of you already know that there is no federal employment law that specifically designates domestic violence victims as a protected class. Many state and local laws are also silent on this issue. While firing an employee because s/he is being subjected to domestic violence is, to just about all of us, morally reprehensible, is it illegal? In many instances, yes it is–and you could find yourself paying the price. Now, you may be thinking, “Wait a minute. If the employee is missing too much work, I can’t depend on him/her and I have a business to run. If s/he is not getting his/her work done, those are attendance and performance issues. S/he’s an employee-at-will. How is it illegal to fire him/her?” You might also be asking, “If the employee’s partner is threatening him/her at my workplace, then s/he’s only interested in my workplace if that employee is here. If s/he’s not here, there shouldn’t be a threat. Aren’t I allowed, and don’t I have an obligation to protect my other employees — and my clients/customers?” The answer is yes, but that doesn’t mean that termination of the employee-victim is the answer. Here are some reasons why termination may be illegal:
State/local Sick/safe Leave Laws: States such as Massachusetts, Connecticut, California, Oregon, and the District of Columbia require certain employers to provide up to a certain amount of sick time to eligible employees. New York City, Seattle Washington, Jersey City, New Jersey and many other localities have similar laws, most if not all of which specifically require employers to allow time off to domestic violence victims for court appearances or medical treatment or simply to heal if they are so injured they cannot work. Even without those specific provisions, however, by reason of having an injury they may still qualify for leave time under state or local sick leave laws. If you fire an employee in violation of these laws, you are risking assessment of fines and penalties at the very least. For those laws that allow employees to bring a private lawsuit, then you are looking at paying significantly more in damages and legal fees.
Family Medical Leave Act: If you employ 50 or more employees within a 75-mile radius, and your employee sustains an injury arising out of domestic violence, the injury may qualify as a “serious health condition” within the meaning of the Family Medical Leave Act. If the employee is otherwise FMLA-eligible (i.e. s/he has worked for you long enough and has worked the requisite number of hours in the last 12 months) firing him or her may be an FMLA violation. The employee can either sue for FMLA interference or can complain to the United States Department of Labor–which means you now have a federal government agency involved in your business–and you may be fined with interest.
Americans with Disabilities Act: If your employee sustains an injury arising out of domestic violence, s/he may, by reason of that injury also be disabled within the meaning of the ADA. If so and if you are subject to the ADA, the employee may be entitled to reasonable accommodations to perform his or her job. Reasonable accommodations may include time off for medical treatment or healing. Under the ADA if the employee asks for time off or some other type of accommodation, you are obligated to “engage in the interactive process” , i.e. discuss the matter and see if you can accommodate the employee’s needs without causing your company undue hardship. If you can show that doing so causes an undue hardship, you do not have to allow for the time off or provide accommodations under the ADA. (Note that while undue hardship is a defense under the ADA, it is not a defense under the FMLA. Therefore if your employee is eligible for FMLA leave, you have to allow for the time off and reinstate the employee to the same or roughly equivalent position at the end of his/her leave regardless of the hardship.)
Other Federal and State Anti-Discrimination Laws: If your employee is also a member of one or more classes protected under federal or state anti-discrimination laws you might even be risking a Title VII or similar claim. How can that be? If you have other employees who are otherwise similarly situated but not in that same protected class that you have either allowed to take off time or whose performance may have at one time declined that you did not terminate, your employee may have a discrimination claim. For example, what if you have another employee going through personal problems, whose performance and attendance declined that you referred to your company’s Employee Assistance Program? Maybe you let him or her leave early on some days to go for counseling? What if that employee is a caucasian mail and this employee, is an Hispanic woman?
So, what can you do? First, you can and should review and update your attendance and employee leave policies and make sure that you are following all federal, state and local medical and disability leave laws. You should also make sure that you apply your policies consistently. You should also, of course, train your managers with respect to these policies and make sure that managers check with either Human Resources, their General Counsel or outside employment counsel before taking an adverse employment action. OK, but what about the safety issue? We’ll cover that in next week’s post. Meanwhile enjoy your Thanksgiving and go easy on that turkey and pie!
Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people
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