One of our employees recently requested some leave related to domestic violence issues she had been experiencing. We suggested that she could take some annual leave, but she told us we had to give her extra leave. I heard that there had been some law changes around domestic violence matters, but I do not understand how this works. Are we required to provide her with extra leave?
You are quite possibly required to provide her with some separate leave in this situation. On 1 April 2019 amendments to the Holidays Act 2003 (“the Act”) came into effect which provide for a new type of leave: domestic violence leave. Domestic violence leave is now a minimum statutory entitlement and is completely separate from, and in addition to, any sick leave or annual leave balance.
Whether your employee is entitled to take domestic violence leave will depend on whether she has a domestic violence leave balance and on whether she meets the eligibility criteria. Similar to sick leave and bereavement leave, an employee will not have a minimum entitlement to domestic violence leave when they first start employment. In order to have a domestic violence leave balance, she will need to have met the six-month length of service requirement (s 72D). To qualify for domestic violence leave an employee must have completed:
• six months’ continuous employment, or
• a period of six months in which the employee has averaged 10 hours of work a week and has worked at least one hour in every week or 40 hours in every month during the period.
Therefore you should check the employee’s length of service, as she won’t have a statutory entitlement unless she meets the six-month service requirement set out above.
Once the length of service requirement is met, an employee is entitled to ten days’ domestic violence leave for each 12-month period thereafter. However, unlike sick leave or annual leave, domestic violence leave does not accumulate. An employee can take up to ten days during the 12-month period following the employee’s entitlement to it but cannot carry forward any domestic violence leave not taken in any of those 12-month periods (s 72H).
If the employee has a domestic violence leave balance, in order to use it she will need to meet the eligibility criteria of being a “person affected by domestic violence”. Under s 72C, a “person affected by domestic violence” means a person who is one or both of the following:
• a person against whom any other person is inflicting, or has inflicted, domestic violence
• a person with whom there ordinarily or periodically resides, a child against whom any other person is inflicting, or has inflicted domestic violence.
It is important for you to note that the domestic violence does not need to take place around the same time as when the employee is requesting the leave in order for her to be eligible to use it. It does not matter how long ago the domestic violence occurred; an employee can become entitled to domestic violence leave even if the domestic violence occurred before the person became your employee. The meaning of domestic violence for the purposes of domestic violence leave is the same as under s 3 of the Domestic Violence Act 1995, which refers to physical, sexual and psychological abuse by any other person with whom that person is, or has been, in a domestic relationship.
Under the Act, you are entitled to require the employee to provide proof that she is a person affected by domestic violence (s 72G). However, the legislation does not specify what constitutes proof. As a word of caution, you might wish to think carefully and exercise sound judgment as to whether you request any proof. Experiencing domestic violence is a private and sensitive issue and it is likely to be difficult for an employee to advise an employer the employee is experiencing it.
In terms of payment for domestic violence leave, similar to sick leave and bereavement leave, each day is to be paid on the basis of the employee’s relevant daily pay or average daily pay (72I).
It is important to exercise caution and sensitivity in dealing with a request for domestic violence leave. At the same time as the amendments to the Act brought into effect the domestic violence leave, they also brought into effect a new ground of personal grievance: a personal grievance for adverse treatment in employment of employees who are affected by domestic violence (s 108A of the Employment Relations Act 2000). The Human Rights Act 1993 has also been amended to prohibit adverse treatment of employees affected by domestic violence (s 62A). While these prohibitions on adverse treatment of employees affected by domestic violence are not directly related to the domestic violence leave, it is important to be aware of them in terms of how you manage and support the employee now that she has brought to your attention that she is affected by domestic violence.
Reproduced with permission of Wolters Kluwer NZ