In an effort to ensure the health, safety and welfare of Nevada’s workforce, Nevada recently enacted SB 361, a law establishing the rights of employees who are victims of domestic violence. Effective January 1, 2018, the law will provide qualifying employees with the right to protected leave, security against adverse employment actions and the right to a reasonable accommodation. To read the new law in its entirety click here.
Protective Leave of Absence
SB 361 requires Nevada employers to provide up to 160 hours of leave during a 12 month period to an employee who: (1) has been employed for at least 90 days; and (2) is a victim of domestic violence; or whose family or household member is a victim of domestic violence. The law defines a “family or household member” as “a spouse, domestic partner, minor child, parent, or any other adult person who is related within the first degree of consanguinity or affinity to the employee, or other adult person who is or was actually residing with the employee at the time of the act which constitutes domestic violence.”
Such leave may be paid or unpaid, may be used consecutively or intermittently, and under certain circumstances must be deducted from leave permitted by the Federal Medical Leave Act (“FMLA”). The law requires the leave to be taken within 12 months immediately following the date on which the act of domestic violence occurred.
After taking any hours of leave upon the occurrence of the act which constitutes domestic violence, to be eligible for additional leave the employee must provide reasonable notice at least 48 hours before leave is taken. Further, the employee must not be the alleged perpetrator. The language excluding an “alleged” perpetrator from the right to leave may create issues when there are accusations of domestic violence between multiple family members. The statute does not clarify how to deal with the common issue of multiple accusations and this will likely cause problems for employers until there is further clarification from the Legislature and/or case law.
An employee may pursue a leave of absence under this law to seek judicial relief, obtain medical or psychological treatment or to develop a safety plan. While the new law greatly expands the rights of employees, employers reserve the right to require an employee to provide documentation confirming the need for the leave of absence. Employers are advised to consult with qualified legal counsel regarding adequate documentation.
Protection Against Adverse Action
Employers are prohibited from discriminating against prospective employees on the basis of their status as domestic violence victims or from taking adverse action against current employees on the basis of their status as domestic violence victims.
Further, the law requires Nevada employers to provide a reasonable accommodation to an individual who is the victim of domestic violence as long as the accommodation does not create an undue hardship on the employer. The statute provides examples of reasonable accommodations such as a schedule modification, reassignment or new work phone number.
The language of the statute does not specify whether an employer must provide leave as a reasonable accommodation for an employee who either: (1) has not worked the requisite 90 days to qualify for the 160 hours of leave; or (2) who has exhausted the 160 hours of leave. Keep in mind that an employee who does not qualify for the 160-hour leave , might still qualify for leave under the FMLA or Americans with Disabilities Act if the domestic violence has caused for example clinical depression, anxiety or post traumatic stress disorder.
As with the right to a leave of absence, employers reserve the right to require an employee to provide documentation confirming the need for accommodation. Again, employers are advised to consult with qualified legal counsel regarding adequate documentation.
Notice and Recordkeeping
The Nevada Labor Commissioner has provided a bulletin to help employers explain the impact of SB 361 to employees. As of January 1, 2018 the bulletin must be posted by employers in a visible location of the workplace. Employers must keep a record of the hours taken for leave relating to domestic violence issues for a two-year period and make records available to inspection by the Labor Commissioner upon request.
Domestic Violence Leave and other recent developments in Nevada law will be discussed at the NNHRA Carson City breakfast Meeting on October 19, 2017 where Attorney Brett Sutton will be giving an employment law update. For more information and registration for the event, visit: www.suttonhague.com/events/.
View the Labor Commissioner Domestic Violence Victims Bulletin here.