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Ten Years After Its Passage, Florida’s Law on Employment Leave for Victims of Domestic Violence Remains Obscure

5/31/17

By: Melissa A. Santalone

As of July 1, 2007, Section 741.313 of the Florida Statutes mandated that Florida employers with 50 or more employees must provide an employee who has been employed for three or more months with up to three days of leave from work in any 12-month period if the employee or a family or household member of an the employee has been a victim of domestic or sexual violence. Even though this law is nearing its tenth anniversary on the books, it may never have gotten the attention it needs in Florida’s employment law circles. Here are some frequently asked questions to get you up to speed on this law:

Are there any limitations on what reasons or activities the employee can use the leave for?

Yes. An employee may only use the leave to:

1. Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
2. Obtain medical care or mental health counseling, or both, for the employee or the employee’s family or household member to address physical or psychological injuries resulting from the act of domestic or sexual violence;
3. Obtain services from a victim services organization, like a domestic violence shelter or rape crisis center;
4. Make the employee’s home secure from the perpetrator of the domestic or sexual violence or to seek new housing to escape the perpetrator; or
5. Seek legal assistance in addressing issues arising from the act of domestic or sexual violence or to attend or prepare for court-related proceedings stemming from the act of domestic or sexual violence.

Does the employee have to provide the employer with notice in order to take leave?

Generally, yes. Except in cases of imminent danger to the health or safety of the employee or the employee’s family or household member, an employee requesting leave under this law must provide the employer with appropriate advance notice of the leave as required by the employer’s policy, along with sufficient documentation of the act of domestic or sexual violence as required by the employer.

Does the leave need to be paid?

No. Whether this leave is paid or unpaid is left to the discretion of the employer.

Can the employee take this leave before the employee exhausted paid time off?

No, not unless the employer waives this requirement.

Are there any other mandates for the employer under this law?

Yes. Employers are prohibited from interfering with, restraining or denying an employee’s exercise or attempt to exercise the employee’s rights under this law. Employers are also prohibited from discharging, demoting, suspending, retaliating against or otherwise discriminating against an employee for exercising the employee’s rights under this law. In addition, private employers are required to keep confidential all information relating to the employee’s leave.

Can the employee file a lawsuit against the employer for failing to comply with this law?

Yes. The employee may sue the employer for violations of the act and claim as damages all wages and benefits the employee would have been due had the violation not occurred up to the date of judgment.

What can the employer do to prevent potential problems that may arise when an employee wants to take leave under this Statute?

Each Florida employer with more than 50 employees should have a clear, concise written policy setting forth the employer’s notice and documentation requirements to request and take leave under this law, as well as whether the leave is paid or unpaid and whether the employer will waive the requirement that the employee must exhaust his or her paid time off before taking leave. Employers should also be mindful of the fact that physical or mental injuries to an employee or his or her family members may also trigger protections under the Family and Medical Leave Act (FMLA).

If you need assistance in preparing or reviewing your employment policies with regard to domestic violence leave, please contact Melissa A. Santalone at msantalone@fmglaw.com.