Beyond the basics: domestic violence leave

No doubt most employers in New Zealand will be aware their employees are now entitled to domestic violence leave. We know the basics, that employees who are affected by domestic violence are entitled to 10 days paid domestic violence leave for every 12-month period after six months continuous employment. But what else do employers need to know?

Much like other types of paid leave, domestic violence leave can be taken in advance by agreement, but it cannot be carried forward into the next 12-month period. It is intended to cover employees who may still be experiencing the effects of domestic violence, so there is no time restriction based on when the domestic violence occurred. This means the domestic violence can predate employment with the employee’s current employer.

Other concepts introduced in relation to domestic violence include the ability to request a short-term flexible working arrangement and the ability to raise a personal grievance or claim under the Human Rights Act 1993 if the employee believes they have been treated adversely on the grounds they are suspected or assumed to be affected by domestic violence.

Practical considerations

Where an employee makes a request for domestic violence leave, an employer may request proof. There is flexibility for employers to determine what amounts to sufficient proof. Employers should be open-minded and use their discretion in determining what type and level of proof is needed (if any). Examples of types of proof include having a simple discussion with the employee, documents issued by the police or court, documents from a health professional or family violence support service, or a statutory declaration.

Importantly, employers should also consider how they will provide other forms of support for their employees that are known to be or have been affected by domestic violence.

Useful support could include screening phone calls, giving the employee a car park close to the workplace door, providing flexible work hours, changing the employee’s work phone number and email, giving the front desk a photo of the perpetrator or designating someone to monitor the affected person’s attendance and follow up swiftly when there are unplanned absences.

The approach taken will not be the same for each employee, which is why employers should already be thinking about the kind of support they will provide. Taking a more personal approach will create an environment where affected employees feel comfortable about coming forward and using their domestic violence leave entitlements.

How to combat privacy concerns

The Privacy Act 1993 governs how these requests will be conducted, therefore employees’ safety and privacy should be at the forefront of employers’ minds.

Given the sensitivities around domestic violence and the need for these leave requests to be treated as confidential, employers should plan how they will record domestic violence leave for administrative purposes, such as payroll. For example, some employers are considering implementing policies which permit verbal requests.

The following are some steps employers could take to ensure privacy:

Human Resources could act as the main point of contact for employees making domestic violence leave requests. They could be responsible for managing domestic violence issues, recommending appropriate rehabilitation services and providing ongoing support
Domestic violence leave could be marked as confidential or recorded under a code such as “special leave*”, which is only known by certain staff. If access cannot be restricted, domestic violence leave could be manually recorded in a confidential file
Specific staff could be given exclusive access to particular databases and be responsible for managing these requests
There could be alternative ways of filing a domestic violence leave request. For example, employers could provide a comprehensive leave form or allow employees to file a request via a colleague if they are feeling overwhelmed

Health and safety considerations

An employer’s health and safety policies must be up-to-date and consistent with the changes regarding domestic violence. While domestic violence is not itself a workplace event, it can still impact an employee’s health and safety at work. Specifically, domestic violence could be the cause of a health issue for an employee at work and the resulting behaviour could be considered a ‘hazard’.

Employers need to be aware of the general effects of domestic violence and be proactive in its management. This may include identifying performance issues and absenteeism and offering support as appropriate.

First and foremost, ensure all employment agreements and polices have been updated to incorporate domestic violence leave and think about appropriate short and long-term strategies to assist employees affected and communicate these to the workplace.

There are further changes to the law which will take effect on 6 May 2019, so all employment agreements and policies need to be updated in line with the upcoming changes.

Jessie Lapthorne has extensive experience as an employment law specialist, both in New Zealand and the United Kingdom. She is a partner in Duncan Cotterill’s growing employment, health and safety team and is based in Auckland. Contact Jessie on 09 374 7156 or [email protected]