Domestic Violence Leave – Coming to a business near you!
On 25 July 2018 Parliament voted on the Domestic Violence Protection Bill and passed 63 votes to 57, with only National and ACT opposing the Bill. The passing of this Bill will impose various obligations on Employers, effective as of 1 April 2019 under the Human Rights Act 1993, Holidays Act 2003 and Employment Relations Act 2000.
An Employee who is classed as a person affected by domestic violence will be entitled to 10 paid days domestic violence leave per annum. This entitlement will be in addition to any annual, sick or bereavement leave entitlements already provided for under the Holidays Act 2003. Domestic Violence Leave will work in a similar manner to sick or bereavement leave, in the sense that an Employee will become entitled to such leave after six (6) months of continuous employment with your business.
For an Employee to become entitled to Domestic Violence Leave they must be classed as a “person affected by domestic violence.” For a person to be affected by domestic violence, they have to be a person who is currently, or has had, domestic violence inflicted upon them and/or be a person who ordinarily resides, or periodically resides, with a child who another person is inflicting, or has had, domestic violence inflicted upon them. In other words, prepare for the floodgates to open.
What does this really mean for Employers? It means that you will now have to pay for an additional 10 days per year, per Employee, to satisfy their entitlement to Domestic Violence Leave. Green Party member, Jan Logie, has stated that research conducted in New Zealand and Australia, where Employees are already covered by these provisions, has shown that the cost to Employers is minimal. Whereas National’s Justice spokesperson, Mark Mitchell, stated that National believe there are better alternatives to the bill – rather than passing the cost onto small to medium sized business owners. So, there are differing views as to how much the passing of this Bill is going to cost Employers, but only one (1) thing is for certain – it will end up costing the Employer.
What happens if an Employee wants to utilise this type of leave, but you have suspicions that they may be trying to pull the wool over your eyes? Employers will be entitled to ask for proof, however the legislation is unclear what ‘proof’ might entail. Unless the affects of domestic violence are obvious (i.e black eye), proof may mean a medical certificate, social worker report, or a police report. If an Employer requests proof of domestic violence, and the Employee is unable or does not provide proof within 10 days of the request, without good cause, then the Employee will not be entitled to paid leave.
An Employee may make a request for this leave at any time by notifying the Employer as early as possible before they are due to start work of the need to take domestic violence leave, or as early as possible after their start time if that is not possible – in other words, notification will operate in a similar nature as sick leave.
In addition to the 10 days paid leave, an Employee may also request for a flexible working arrangement which could operate for up to a two (2) month period. For an Employee to make such a request, they must do so: in writing; stating their name and the period they would like a flexible working arrangement for; state the relevant sections of the Act; specify how they see the flexible arrangement working; specify how the arrangement will assist that Employee being affected by domestic violence; explain what they believe the Employer would need to change to accommodate the request.
When an Employer receives a request of this nature they must notify the Employee of their decision as soon as possible, but not later than 10 working days after receiving the request. An Employer may only decline a request if the Employee fails to provide proof or the Employer cannot reasonably accommodate the request. However, be aware that the Employer must request proof within three (3) working days of receiving the request otherwise the Employee can refuse to provide such proof.
The good news for Employers is that Domestic Violence Leave may not be accumulate, be carried over, and it should not be paid out at the ending of the Employee’s employment. Therefore, if an Employee does not utilise their Domestic Violence leave within the 12 months of becoming entitled, they lose their entitlement.
The bad news is that you could be issued with a penalty by the Employment Relations Authority, payable to the Employee, if they do not comply with their obligations under the relevant Acts. An Employer could also face other penalties for Human Rights breaches if it is found that the Employer has discriminated against a person who is affected by domestic violence.
So how can you prepare for the change? Update your Employment Agreements or Leave Policy to include provisions around Domestic Violence Leave so you, and your Employees, are aware of the upcoming entitlements and how they will operate within your business before the changes come into force on 1 April 2019.
If you require any assistance with updating your employment documentation, or you would like to know about the upcoming changes, feel free to give one of our team a call 07 823 0105, we would be happy to help.