With the blurring between remote work and home life due to the ongoing pandemic, some employers are seeing an uptick in the workplace effects of domestic violence.
Fortunately, many of the tools to effectively and compassionately manage such concerns are already found in most employee handbooks. Businesses can and should proactively minimize the effects of domestic violence on employee performance, manage safety risks at work, and decrease potential employer liability.
What Is Domestic Violence?
Domestic violence is generally understood as physical, emotional, financial, or sexual coercion or abuse occurring between intimate partners or former intimate partners. The law increasingly protects heterosexual and LGBTQ individuals. One recent study found that 30-53% of employed victims of domestic violence lose their jobs due at least in part to the domestic violence; over 95% of victims feel that the abuse affects their work in some way. Other studies confirm that violence escalates during pregnancy.
Warning Signs for Employers
Frequently, employers can see a pattern of abuse in the workplace before or without an employee asking for help:
- Attendance issues: being late or absent, requesting leave for medical or legal needs
- Physical injuries are visible
- Employee shows decreased performance or trouble concentrating
- Employee has difficulty communicating with others
- Fear of employee or co-workers that an abuser will come to the workplace
- Abuser calls, emails or texts the employee or others in the workplace
- Protracted child custody battle used as a method of control or coercion
Conversely, employers may also become aware that an employee is perpetrating domestic abuse during work time or using employer resources to communicate with their victim.
Watch Your Mouth
Statements like “I don’t want you to bring your problems to work” or “You have too much drama” can create employer liability, and perhaps worse, limit the employer’s opportunity to take action before violence enters the workplace.
Proactive measures can be instituted whether the employee has a restraining order or not, including:
- modifying policies to not give out the employee’s location, phone number or other information
- a location reassignment (e.g. away from the front door)
- an escort to their car
- giving security or the receptionist a picture of the abuser
Laws affecting Employers around the DMV
Numerous federal and state laws can come into play for employers. Due to remote work, employers may need to become familiar with laws where the employee lives. Some key obligations which can arise include:
- Title VII of the federal Civil Rights Act and similar state laws in Maryland, DC, and Virginia prohibit discrimination and harassment on the basis of sex, sex-based stereotypes, gender, and pregnancy.
- The Family and Medical Leave Act may be triggered by physical injuries or other serious health conditions (including potentially anxiety, depression or PTSD).
- The Americans with Disabilities Act may require reasonable accommodations to an employee who has a physical or mental impairment that substantially limits one or more major life activities, has a history or record of such an impairment, or is perceived by others as having such an impairment.
- Delaware prohibits employers from discriminating against an employee for being a victim of domestic violence.
- Earned sick and safe leave laws in Maryland and DC extend beyond seeking medical care to absences for seeking legal assistance, victim services, and court appearances.
- In Virginia, there is no mandatory sick and safe leave for private employers, however it is illegal to penalize an employee for appearing in court.
Risk Management Is Key
Employers should ask themselves whether they are actively creating a culture of safety in the workplace.
- Have an “Open Door” policy for employees to proactively share concerns to HR or senior management.
- Ensure sick and safe leave policies are up-to-date and posted conspicuously in the workplace and provided electronically so that employees can access them privately.
- Include a “violence in the workplace” policy in the Employee Handbook on how employees should report safety concerns before a workplace incident occurs.
- Be flexible when modifications to the employee’s work or work conditions can provide a measure of protection and support without resorting to formal mechanisms.
- Refer employees to the Employee Assistance Program, if one is available, or to community resources.
- Practice common-sense confidentiality: communicate need-to-know information without disclosing sensitive or private details.
- Ensure all managers are well-trained on non-discrimination and non-retaliation concepts.
As always, we are here to help you navigate your most sensitive challenges. Contact the attorneys at McMillan Metro Faerber at (301) 251-1180 for more information.