Q. Can an Employee Take Unauthorized Absence to Assist Domestic Partner? Illinois' Victims' Economic Security and Safety Act

December, 2003

Lets take this hypothetical case study. We will use the case study to analyze the new “Victims’ Economic Security and Safety Act” which was recently enacted by the Illinois State General Assembly as Public Act 93-0591.

Case Study

Your first call of the morning is from the manager of employee John Doe. From a long past history, you know that John Doe is always in a state of crisis. In the past year, he has used up all vacation time and personal time. He also has taken an additional 17 days off to handle “problems” in his family. Today John Doe informed his manager that he was going to have to take at least two or three weeks off. John Doe explained that his male lover who co-habitates with Doe in his home as his domestic partner was the victim of a sexual assault by two other gay men. John Doe explains that he needs the time off to take the victim to counseling, relocate him for safety reasons out of the neighborhood, seek legal assistance and medical attention.

Doe’s manager has had it with Doe. She states that it’s one thing or another involving Doe’s family. The manager needs Doe at work because of a current project on which only Doe was working. The manager is short handed because there was a recent reduction in force in her department leaving her three employees short. She needs to complete the project by tomorrow. Doe told his manager that he is sorry, but that it is his right, he has to take care of his partner and he walked off the job. Doe did not show up for the rest of the day and today also has not shown up. The manager has called Doe at home and told Doe that he is terminated, effective immediately.

You and his manager both have been sympathetic with Doe in the past, but this last incident is the straw that broke the camel’s back.

Issue

Is the company within it’s rights to have terminated Doe?

Answer

Not if you have 50 or more employees in Illinois as of August 2003. In August of this year, the Victims Economic Security and Safety Act took effect. Employer solutions and practice tips are provided in what follows.

General Provisions

Under the Act, if an employee, family or household member of the employee is a victim of domestic or sexual violence, the employee may take unpaid leave from work to seek medical counseling or safety or relocation assistance for the victim. The employee may also seek legal assistance including participating in civil or criminal legal proceedings.

“Family or household member” means spouse, parent, son, daughter, and persons jointly residing in the same household. The Act does not address the sexual orientation of family or household members. The Illinois Department of Labor has not issued any regulations interpreting this provision of the Act as of the date of this newsletter. Therefore, John Doe’s assistance to his gay domestic partner may be covered under the Act, provided that the victim’s interests were “not adverse to the employee” in the violent situation.

“Unscheduled Absences” Protected

John’s conduct might be protected under the Act because the Act allows for “unscheduled absence.” It precludes an employer from taking any action against the employee provided that the employee “within a reasonable period” after the absence provides certification of the incident in a sworn statement.

Certification

Certification should include documentation from the victim’s service organizations, attorney, clergy, or medical or other professional who provided assistance to the victim. Police or court records and other corroborating evidence are also acceptable.

12 Weeks Unpaid Leave

The three weeks Doe requested also may be allowed under the Act. The Act allows up to twelve weeks of unpaid leave provided that the time does not exceed the total time covered under the Family Medical Leave Act.

Job Applicants Protected

The Act covers not only employees, but those who are applicants for jobs at your company.

Reasonable Accommodation

Employers are required to make “reasonable accommodation” which can include adjustments to job structure, transfers, reassignments or modifications of schedule, change of telephone number, seating assignments, installation of locks, and implementation of safety procedures.

Undue Hardship

Perhaps the recent reduction in force at your company, and the urgency of the project would be sufficient to create an “undue hardship.” The Act exempts an employer if there would be an “undue hardship.” This means circumstances that would cause significant difficulty or expense when considered in light of a series of factors set out in the Act.

Enforcement

The Department of Labor for the State of Illinois has been assigned enforcement responsibilities for the Act. Victims can bring their claim within three years after the alleged violation. The Department will conduct an investigation including a hearing. If successful, an employee can recover wages, employee benefits and reasonable attorneys fees among other damages.

Health Benefits

While John Doe is gone, you must continue to cover him under your employee health benefit coverage. If for some reason the leave of absence extends, you must continue to cover him. When he comes back he must be given the same or an equivalent job position.

Confidentiality

Finally, while John Doe may have widely publicized his past family problems, the employer’s responsibility is to keep all of this information confidential, including the employee’s request. Failure to do so would also be a violation of the Act.?

PRACTICE TIPS

Protect Against Employee Abuse

Require Thorough Certification.
Determine If There Is a Valid “Undue Hardship.”
Keep Track of Time Off.
Document Meetings.

Protect Against Employee Lawsuits

Educate Management on This New Law.
Keep Requests Strictly Confidential.

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