Leave for Victims of Domestic Violence, Sexual Harassment, and Assault
A new leave statute applicable to public and private employers was signed into law by Ricardo Rosselló signed into law as Act No. 83 (“Act 83” or “the Act”) on August 1, 2019. The law went into effect immediately. Act 83, in general terms, provides employees with 15 days of unpaid leave per year for instances of gender or domestic violence, abuse of minors, sexual harassment in employment, sexual assault, lewd acts or aggravated stalking.
The new “Special Leave” is in addition to any other leave to which the employee might be entitled under the law. The victim need not file a police report to be entitled to take Special Leave. The perpetrator of the abusive conduct is not entitled to take leave under the new law.
Leave for Association with a Victim of Abuse
Employees may take Special Leave when the victims are their family members. Covered family members include:
- Partners united by an affective relationship;
- Parents; and
- Minors, persons of advanced age, or with disabilities over which the employee has custody or guardianship.
Use of Leave
An employee may use Special Leave to:
- Seek advice and obtain a restraining order or court order;
- Seek and obtain legal assistance; and
- Seek and obtain safe housing or space in a shelter.
Leave time may be taken on a fractioned or intermittent basis. The employee is not entitled to carry over unused leave from prior years.
An employer may request supporting documentation detailing the time spent by the employee addressing the circumstances needing Special Leave. The employee must provide the documentation within a reasonable period, but no later than two business days after the employee’s last absence under the Special Leave. Employers may not require evidence of a conviction or arrest as a condition of use. The law provides the following examples of documents an employee may submit:
- A restraining order;
- Documentation under the letterhead of a court, agency, public or private service provider that assisted in an incident of abuse;
- A police report;
- Documentation evidencing the offender’s conduct;
- Documentation of medical treatment received by the employee or family member as a result of the abuse;
- Certification by a therapist, certified counselor, religious leader, shelter director, attorney, or other qualified professionals who assisted the employee or family member as a result of the abuse;
- A sworn statement provided by another employee who witnessed the abuse to the employee or family member;
- Any other document that credibly reflects that the employee was making arrangements for themselves or a family member victim of abuse.
Employees may request reasonable accommodation or flexible work conditions to address an abuse situation. Any request must be in writing and may be denied only if it is “unreasonable” and only after evaluating all the possible accommodation for the employee.
Notification of Need for Special Leave
Generally, an employee must provide at least two business days’ notice, unless the circumstances do not permit earlier notification. Notice may be provided by the employee, family, therapist, certified counselor, religious leader, shelter director, attorney, or other qualified professionals who have assisted the employee or family member as a result of the abuse. Notice may be provided by fax, in person, by email, in writing, or any other reliable method of communication.
Employees have a right under the law to be restored to their employment when the Special Leave has been exhausted. Failure to provide reinstatement entitles the employee to a claim for back pay and damages.
Documents submitted or produced in relation to the Special Leave must be kept confidential. However, the law provides an exception for responding to a subpoena or request from a government entity. Any documentation submitted by the employee must be filed in the employee’s personnel file under seal.