New Law Grants FMLA: Type Leave Rights to Domestic and Sexual Violence Victims


The Victims’ Economic Security and Safety Act was signed by Illinois Governor Rod Blagojevich on August 25, 2003. It became effective immediately. Modeled generally on the federal Family and Medical Leave Act (“FMLA”), the Illinois Act grants up to 12 weeks of unpaid leave, in a 12-month period, to a victim of domestic or sexual violence (which includes domestic violence, sexual abuse or stalking, each as defined by the Illinois Criminal Code).

The Act also grants such leave rights to a victim’s family members, as well as other individuals “jointly residing in the same household” as the victim. The Act is intended to solve an unquestionably serious problem, but its requirements will impose significant new compliance burdens on Illinois employers.

Scope of Coverage

The Act applies to employers who employ at least 50 employees, the same threshold for coverage under the FMLA. However, unlike the FMLA, the Act does not contain any minimum length of service threshold which employees must satisfy to be covered. The Act’s grant of 12 weeks of leave allows employees to take leave intermittently, or by means of a reduced work schedule, as is also the case under the FMLA.

If the reason for leave under the Act also entitles the employee to FMLA leave, the Act does not grant any additional leave time. A reason for leave under the Illinois Act, however, will also qualify as a reason for leave under the FMLA only to the extent that employee or the employee’s family member has a “serious health condition” as defined by the FMLA.

Further, the Act covers individuals in certain “welfare-to-work” training programs, regardless of their status as employees.

The Act grants leave rights to two classes of employees: those who are or have been victims of domestic or sexual violence , and those who have a family or household member who is or has been such a victim. The broad definition of “household member” includes same-sex domestic partners, marking the first time that an Illinois state employment statute grants rights to such individuals in private employment.

An employee may take leave under the Act because of domestic or sexual violence perpetrated upon a family or household member only if “the interests [of such family or household member] are not adverse to the employee as it relates to the domestic or sexual violence.” This provision appears intended to deny leave rights to a perpetrator (i.e., an employee who victimized a family or household member).

The status of “victim” arises when an individual has been “subjected to domestic or sexual violence.” The Act does not limit this status to situations where the alleged perpetrator of such violence has been adjudicated as guilty, but it does require that the employee requesting leave meet certification requirements (albeit minimal ones).

Right to Take Leave

Covered employees would have a right to take leave “to address domestic or sexual violence” by five types of actions:

  1. Seeking medical attention
  2. Obtaining services from a victims’ services group,
  3. Obtaining counseling,
  4. "Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee’s family or household member from future domestic or sexual violence or ensure economic security” and
  5. "Seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence.”

The latter two purposes for which leave may be taken are open-ended. The Act contains no limits upon the scope of “other actions to increase safety … or ensure economic security.” Similarly, any consultation with a lawyer or court proceeding, including divorce or child custody matters, in which alleged domestic or sexual violence is an issue appear to be within the “legal assistance or remedies” basis for leave.

An employer may require at least 48 hours advance notice of the need for leave, if practicable. However, the Act allows a covered employee to take leave without advance notice if giving notice is “not practicable,” and if the employee provides a certification to the employer “within a reasonable time period after the absence.”

An employer also may require a certification that the leave is for a purpose allowed by the Act. Yet, while the FMLA allows an employer to require a certification by a health care provider and to obtain second and third opinions, under the Illinois Act the employee’s sworn statement, by itself, would be sufficient. The Act does not require an employee to obtain documents containing corroborating evidence, but requires that the employee provide such documents only “upon obtaining” them.

Nothing in the Act prevents employers from independently obtaining and scrutinizing such documents.

Restoration, Discrimination and Reasonable Accommodation

Borrowing from the FMLA, the Act requires that an employee be restored to the same or equivalent position when the leave is completed. Similarly, during the leave, the employer must maintain all accrued benefits, including all group insurance benefits, since eligibility for such benefits that existed at the time leave began presumably would be deemed to have “accrued.” The Act expressly requires that group health insurance benefits be maintained during a leave in a manner similar to the FMLA.

In a substantial expansion of Illinois employment law, the Act broadly prohibits discrimination against an employee who is or is perceived to be a victim of domestic or sexual violence. Among other prohibitions, the Act bars an employer from disciplining or discharging any individual on the basis that “the workplace is disrupted or threatened by the action of a person whom the individual states has committed or threatened to commit domestic or sexual violence against the individual or the individual’s family or household member.”

The Act also broadly prohibits retaliation against any employee for exercising rights under the Act.

Akin to disability laws, the Act defines “discrimination” to include failure to make a reasonable accommodation to the “known limitations resulting from circumstances relating to” the employee, or the employee’s family or household member, being a victim of domestic or sexual violence.

The duty to provide a reasonable accommodation is subject to the applicant or employee being an “otherwise qualified individual.” The employer would be relieved from this obligation if it imposed an “undue hardship.”

The Act provides that reasonable accommodation may include “adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure, in response to actual or threatened domestic or sexual violence.”

Thus, the Act requires employers to accommodate employees by modifying workplace conditions that an employee perceives as problematic solely because of the employee’s difficulties with a third party.

Enforcement

The Act will be administered and enforced by the Illinois Department of Labor with whom a complaint may be filed within three years after an alleged violation. The Director of Labor is authorized to investigate, hold hearings and issue regulations. Sanctions include back pay, injunctive relief and attorneys’ fees awards.

Since the Act does not provide for a private right of action, presumably the attorneys’ fees provision relates to representation in the course of hearings conducted by the Department (similar to the hearings conducted by the Illinois Human Rights Commission).

Failure to pay damages within 30 days after being ordered to do so by the Department of Labor or a court results in a penalty of one percent per calendar day thereafter.

Such a broad and encompassing enactment raises a host of questions. For example, to the extent that the Act is designed to enlist employers in the fight against domestic and sexual violence, will the IDOL issue regulations to implement the Act that minimize the potential for abuse of leave rights by employees, and thereby encourage employers to take proactive steps where an employee has legitimate concerns?

How will leave rights under the FMLA and the Act be coordinated, in practice? Although the Act does not require that more than 12 weeks of leave in a 12-month period be provided if the reason for leave under the Act is also a reason for leave under the FMLA, what is to prevent an employee from stating his or her reason for leave under the Act in a manner that falls short of establishing a “serious health condition” for FMLA purposes?

If an employee does so, he or she would be eligible for 12 weeks of leave under the Act, and then potentially 12 more weeks under the FMLA upon conversion of the predicate reason into a serious health condition.

Reasonable Accommodation

The requirement of “reasonable accommodation” likewise will create issues. What if an employee claims to need more than the 12 weeks of leave granted by the Act to “address” the effects of domestic or sexual violence? It is quite possible that an employer would be required to grant such additional leave, since the Act expressly notes that “leave” is one type of reasonable accommodation (apart from the grant of 12 weeks of leave as such).

Further, the duty to provide a reasonable accommodation includes instituting safety procedures and other preventive steps to combat domestic or sexual violence. Will this require an employer to take actions to ensure the safety of a threatened employee while traveling to or from the workplace?

The risks for Illinois employers may be open-ended. In contrast to other Illinois statutes which contain similar provisions, the Act contains no limitation on the accrual of the one percent per day penalty.

In the absence of administrative regulations to mitigate this problem, any employer who chooses to appeal or otherwise challenge a court or agency order therefore could incur a significant risk that the monetary penalty will increase dramatically before the matter is finally resolved.

Wrap-up

The employer community unquestionably supports reasonable measures to attack the scourge of domestic and sexual violence, both as a matter of social justice, and as a means of reducing employee turnover, absenteeism, lost productivity, and the increased social welfare costs such violence imposes. But employment laws may not be the optimal means for addressing this societal problem, particularly where the law contains significant gaps and ambiguities which make compliance obligations unclear and the potential for misuse by employees high.

Regulations issued by the IDOL and future court decisions are likely to fill some gaps and clarify some ambiguities in the Act. Ultimately, however, employers are best-advised immediately to become familiar with the Act, consider developing and implementing policies to guide their decisions and attain compliance, and examine their existing policies on related subjects (such as an FMLA policy) that may assist in managing situations covered by the Act.