Effective August 28, 2021, employees in Missouri are entitled to unpaid leave in certain circumstances related to domestic or sexual violence pursuant to the Victims Economic Safety and Security Act (“VESSA”). Individuals employed by a public or private employer with between 20-49 employees are entitled to one week of leave in any 12-month period. Employees of larger employers are eligible for two weeks of leave in any 12-month period. Employees eligible for unpaid leave under the new law include direct victims of domestic or sexual violence and employees who have a family or household member who is a victim of domestic or sexual violence so long as the interests of the family or household member are not adverse to the employee as it relates to the domestic or sexual violence.
“Domestic violence” is defined as “abuse or stalking committed by a family or household member.” “Sexual violence” is defined as a “sexual assault” or “trafficking for the purposes of sexual exploitation.” “Family or household member” is defined as a “spouse, parent, son, daughter, other person related by blood or by present or prior marriage, other person who shares a relationship through a son or daughter, and persons jointly residing in the same household.”
For eligible employees, leave is available under VESSA to address domestic or sexual violence under the following circumstances: (1) seeking medical attention for, or recovering from, physical or psychological injuries caused by the violence to the employee or the employee’s family or household member; (2) obtaining services from a victim services organization for the employee or the employee’s family or household member; (3) obtaining psychological or other counseling for the employee or the employee’s family or household member; (4) participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee’s family or household member or to ensure economic security; or (5) seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s family or household member, including preparing for or participating in any legal proceeding related to domestic or sexual violence.
Notably, the leave can be taken intermittently or on a reduced work schedule. However, VESSA specifies that it does not create a right for an employee to take unpaid leave that exceeds the amount of unpaid leave time allowed under the federal Family and Medical Leave Act. An employee is to provide his/her employer with at least 48 hours’ advance notice of the intention to take leave under VESSA unless providing such notice is not practicable. Employers should also be aware that, if an unscheduled absence does occur, the employer cannot take any action against the employee if the employee, upon request of the employer and within a reasonable period after the absence, provides the type of certification considered sufficient under VESSA. If an employer does require certification to confirm an employee’s entitlement to leave, the employee can satisfy the certification requirement by providing a sworn statement along with other corroborating documentation such as a police or court record or a document from a professional providing assistance to the employee or a family or household member of the employee. Any certification information provided to the employer needs to be retained in strict confidence. Employers are not prohibited under VESSA from requiring an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.
The anti-retaliation protections addressed in VESSA include the employee’s entitlement to return to the position they held prior to the leave or an equivalent position with equivalent benefits and pay. While the employee is on leave, the employer must maintain any group health plan coverage for the employee and any family or household member for the duration of the leave. Additionally, any leave taken under VESSA cannot result in the employee’s loss of any employment benefit accrued prior to the date on which the leave commenced.
Furthermore, employers must be prepared to discuss and make reasonable and timely safety accommodations to the known limitations relating to an employee or employee’s family or household member being a victim of domestic or sexual violence. Safety accommodations can include adjustments to job structures or job requirements, such as a modified work schedule or installation of safety features to protect the employee. However, employers do not need to make a safety accommodation if the employer can demonstrate the accommodation would impose an undue hardship on its operations.
Employers should consider amending their current leave policies and handbooks in the near future to reflect the requirements of VESSA. Further, all employees of an employer subject to VESSA must be provided a notice summarizing the requirements of the law on or before October 27, 2021. The notice can be provided to employees in electronic form. A copy of the poster approved by the Missouri Department of Labor that summarizes VESSA rights is available at https://labor.mo.gov/posters.
The St. Louis employment law attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including providing advice on leave laws and representing employers in litigation concerning absences and leave laws, for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation or issue. The choice of a lawyer is an important decision and should not be based solely on advertisements.