New rights for employees when they or family members suffer violence

The California Civil Rights Department (CRD) recently posted a notice that employers must provide employees about a law that went into effect in January giving leave and workplace accommodation rights to employees when they or their family members are victims of violence. These rights previously generally were limited to employees who were crime victims themselves and applied to fewer crimes.

In addition to domestic violence, sexual assault and stalking, qualifying acts of violence now include acts or threats involving injury or death, and acts or threats involving using or brandishing a weapon.  

Covered family members include children, spouses, grandparents and siblings, plus one “designated person” who may be a blood relative not included on that list, such as an aunt or cousin, or another person whom the employee considers like family. 

Employers must give the CRD notice to employees when hired, to all employees annually, upon an employee’s request, and to any employee who informs the employer of violence against themselves or a family member.

CRD posted answers to frequently asked questions about these expanded rights.

Some rights apply to all employers, others only to employers with 25 employees or more 

All employers now must give their employees time off to get relief, such as a restraining order, for themselves or their child to protect their or their child’s safety. 

Employers with 25 employees or more also must give employees who are victims of violence, or who have family members who are victims, time off to:

• Make plans to protect against future violence;
• Prepare for or participate in legal proceedings related to the violence;
• Arrange or provide post-violence care necessary to keep a child or dependent adult safe;
• Help a family member recover from violence-related injuries; and
• Get, or help a family member get, such services as legal help, a court order, physical and mental health care for violence-related injuries, services from a domestic violence shelter, or relocated housing.

Amount of leave available

An employee who is the victim of violence or the family member of a deceased victim of violence may take up to 12 weeks off for any qualifying reason. 

That leave runs concurrently with job-protected leave under the federal Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), if the employee is eligible for such leave. As CRD’s FAQs explain, leave an employee takes to address violence to themselves or others “may reduce their ability to use FMLA or CFRA for other reasons (such as the birth of a child).”

An employee whose family member has survived an act of violence is entitled to take up to 10 days off for a qualifying reason, except for relocation, for which an employee may take five days off.

While employees must give their employers reasonable notice, if practical, of the need for leave, an employer may not discipline an employee for an otherwise unexcused absence who gives the employer after-the-fact certification within a reasonable time that a qualifying act of violence occurred. Forms of certification include court or police records and the employee’s signed statement.

Right to job accommodation for act of violence

Employers must provide reasonable safety-related job accommodations upon request to employees who are victims of violence or who have a family member who is victimized. The statute identifies such potential accommodations as:

• Transfer, reassignment, or schedule adjustment;
• Changed work telephone number; and
• Installed lock or other changes in the workplace facility.

CRD’s FAQs suggest an employee is entitled to their requested job accommodation unless providing that specific accommodation would impose an undue hardship on the employer or would make the workplace unsafe for other employees. An employer actually has more flexibility than that. An employer should consider an employee’s preferred accommodation carefully, but California law allows an employer to choose an effective accommodation that is less expensive or operationally disruptive than the employee’s preferred accommodation.  

The goal of the new law was to enable employees to provide physical and mental safety and care for themselves or a family member victimized by violence without risking their livelihoods. Employers now and hereafter must alert their employees to these new rights.

Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.