Last month, Washington Governor Christine Gregoire signed Substitution House Bill 2602, requiring all Washington employers to provide employees with unpaid leave for issues related to domestic violence, sexual assault, or stalking. Aimed at increasing the safety and economic security of victims of domestic violence, sexual assault, and stalking, this new law, effective April 1, 2008, is broad in scope, offering greater protection than many other states with similar laws. The law applies to all Washington employers and covers both victims and their family members. “Family members” include children, spouses, parents, parents-in-law, grandparents or other persons with whom the employee has a dating relationship.

When employees are entitled to leave. This law entitles employees to leave for activities such as:

• Seeking legal or law enforcement assistance or remedies, including preparing for or participating in any civil or criminal legal proceedings related to domestic violence;
• Seeking treatment from a health care provider for physical or mental injuries caused by domestic violence;
• Obtaining assistance from social services programs, such as domestic violence shelters or rape crisis centers;
• Obtaining mental health counseling; and
• Planning safety measures to increase the safety of domestic violence victims, including temporarily or permanently relocating.

Under the new law, employees are required to provide advance notice of the intent to take leave consistent with the employer’s stated policy for requesting such leave. If an employee is prevented from giving advance notice because of an emergency or unforeseen circumstances due to domestic violence, notice must be given no later than the end of the first day that the employee takes leave.

What employers need to know. Employees taking leave under the new law may elect to use sick leave and other paid or unpaid time off. When an employee returns from leave, the employer must reinstate the employee to the position he or she held prior to taking leave or an equivalent position with equivalent benefits and pay.

Employers are prohibited from discriminating or retaliating against an employee for exercising his or her rights under the new law. An employee injured by a violation of the new law may file suit seeking equitable relief such as an injunction, monetary damages, or both along with reasonable attorneys fees.

However when an employee requests leave, employers may ask for verification that the employee or the employee’s family member is a victim of domestic violence. Acceptable verification includes court orders, police reports, and documentation from attorneys, clergy members, and medical providers, or even from the employee himself. To prove the existence of a familial relationship (including a dating relationship), employees may submit proof in the form of a birth certificate, court document or other statement. This new legislation protects the confidentiality of this information.

Other Implications. The Domestic Violence Leave Law was motivated by a real-life situation in which an employer refused to give an employee leave to address domestic violence in her family. The employee filed a discrimination claim which eventually made its way to Washington’s Supreme Court -- despite the fact that the Leave Law had not yet been enacted. Employees should carefully consider leave requests regardless of whether a law requires leave be provided.

Update employee handbooks. Employers should update their employee handbooks to reflect the new law. Our clients in Oregon and California should note that a similar domestic violence leave law is already in place, however, Nevada currently has no such law. Please contact your Bullivant lawyer if you have any additional questions or to see if the law applies in your state.