Leaves of Absence Including Family & Medical Leave

SAFE ACT GIVES LEAVE RIGHTS & PROTECTIONS TO NEW JERSEY EMPLOYEES WHO ARE VICTIMS OF DOMESTIC VIOLENCE

The New Jersey Security and Financial Empowerment Act (the “SAFE Act”) became law as of October 1, 2013. The Act gives victims of domestic violence and sexual assault the right to take up to twenty (20) days of unpaid leave for specified purposes related to domestic violence or sexual assault.

Specifically, the SAFE Act applies public employers and private employers with twenty-five (25) or more employees, and to employees, who personally are, or whose child, parent, spouse, domestic partner, or civil union partner (for brevity, collectively, “close family member”) is the victim of domestic violence or sexual assault. The Act allows eligible employees to take up to twenty (20) days of unpaid leave during the 12-month period closely following an incident.

Eligibility

To be eligible for SAFE Act leave, the employee must have been employed by a covered employer for at least twelve (12) months and must have worked at least 1000 hours in the prior 12-month period for that employer. An eligible employee can use the leave for any of the following purposes as related to an incident of domestic violence or a sexually violent offense:

  1. Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee’s close family member.
  2. Obtaining services from a victim services organization for the employee or the employee’s close family member.
  3. Obtaining psychological or other counseling for the employee or the employee’s close family member.
  4. Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety from future domestic violence or sexual violence or to ensure the economic security of the employee or the employee’s close family member.
  5. Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s close family member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic violence or sexual violence; or
  6. Attending, participating in or preparing for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the employee or the employee’s close family member was a victim
Procedural Aspects of Leave

Eligible employees can take leave in consecutive days or intermittently, in intervals of no less than one day. If the leave is foreseeable, the employee must give the employer written notice as far in advance of the intended start date as is reasonable and practical under the circumstances. If leave is not foreseeable, then the employee must give written notice as soon as practical under the circumstances. An employer may require employees requesting leave under the SAFE Act to provide documentation of the domestic violence or sexual assault as a precondition to granting a leave request.

Because leave is unpaid, employees can elect to use, or employers can require them to use accrued paid vacation, personal days, and sick days during the leave. If the reasons for the leave qualify for medical leave or family leave under the FMLA and/or NJFLA, those leaves will run concurrently with leave under the SAFE Act. Likewise, an employee who qualifies for leave under the SAFE Act also may qualify for Temporary Disability Benefits or Family Leave Insurance benefits and collect such benefits simultaneous with taking leave under the Act.

Compliance and Enforcement

The SAFE Act includes a non-retaliation provision to protect employees who exercise rights under the Act by taking or requesting to take leave. The Act also protects the confidentiality of any information the employee provides the employer in support of a leave request, any information regarding a leave taken or a covered employee’s failure to return to work following a leave, and prohibits retaliation against any employee who refuses to authorize the release of such information.

Employees alleging a violation of the SAFE Act have the right to bring a civil suit against the employer and may recover compensatory and punitive damages, as well as injunctive relief, reinstatement and attorneys’ fees.

All covered employers must post the SAFE Act notice in a conspicuous place by October 1, 2013. Employers can obtain a copy of the notice by clicking the following link to the NJ Department of Labor and Workforce Development’s website: http://lwd.state.nj.us/labor/forms_pdfs/lwdhome/AD-289_9-13.pdf

Practice Pointer: In order for leave under the SAFE Act to run concurrently with family or medical leave under the NJFLA and/or FMLA, the employer must state this requirement in a Policy. The Policy also should allow or require employees to use paid time off during such leaves and reflect other requirements under the SAFE Act.

For assistance with preparing a SAFE Act Policy or for any additional information on the NJ SAFE Act, please contact Douglas S. Zucker at DSZ@zuckerhatfield.com or call us at (973)376-4000.