Author: Beth P. Zoller, XpertHR Legal Editor
Domestic violence is a widespread problem, with one in four women and one in nine men being victims of sexual violence, physical violence and/or stalking by an intimate partner according to federal statistics. Although domestic violence usually occurs outside the workplace, it can have tremendous impact on the workplace, as it may lead to reduced productivity and morale, increased employee turnover, strained relationships, poor job performance, rising healthcare costs and attendance issues.
Employers should take steps to minimize the risk of liability and keep the workplace safe for victims and co-workers. In managing domestic violence at work, the following are some issues to consider:
1. Adopt Relevant Policies and Procedures
An employer needs to develop and implement policies and procedures addressing issues such as workplace safety, harassment and domestic violence. These policies also should be part of the employee handbook.
The workplace violence handbook statement should state that hostile, abusive, threatening or violent conduct will not be tolerated. It should also state that employees convicted of a serious crime or felony may be terminated, as the safety of the workplace is paramount.
A workplace violence prevention policy outlining prohibited conduct can be an integral part of a workplace violence prevention program. It helps demonstrate a commitment by management to maintaining a safe and secure workplace for all employees.
A domestic violence leave policy or safe day policy may allow domestic violence victims the right to take time off for doctor appointments, court appearances, appointments with law enforcement or time to attend counseling and seek shelter from abusers. An employer should make sure that the policy states that the employer will not discriminate or retaliate against employees seeking leave for domestic violence-related issues.
The employer's sexual harassment policy should outline proper workplace conduct and clearly identify harassing, abusive and illegal behavior. It should further include a multichannel complaint procedure allowing victims to bring confidential complaints to management.
A visitor policy can be helpful as it will address workplace security measures to keep the employer's property and premises safe from unauthorized third parties seeking to gain entry and potentially cause harm to employees.
Finally, a domestic violence policy may discuss the protections and assistance the employer will provide to victims of domestic violence, sexual assault and stalking. The policy may also state that domestic violence victims may be entitled to reasonable accommodations (e.g., scheduling modifications, change of work station or work telephone number) to ensure a safe and secure working environment. Additionally, domestic violence victims should be encouraged to notify the employer if they have obtained a restraining order against an individual so that an employer can act to keep the workplace safe.
2. Train Employees and Supervisors
An employer should conduct training on domestic violence and workplace violence for all employees and supervisors. The employer should stress that violence is a serious issue and advise all employees to report potentially dangerous situations to the employer. The employer should stress that all complaints will be kept confidential to the greatest extent possible. An employer also may want to train employees on the steps to take in the case of an active shooter on the employer's premises.
Supervisors should receive enhanced training with regard to active shooter events and workplace violence. Further, supervisors should be trained to recognize possible signs of domestic violence, such as markers of physical harm or bruises, increased stress or emotional withdrawal. Supervisors should be extremely sensitive to these issues, as changes in behavior may affect workplace performance. Supervisors must also understand how to report these instances to HR or the employer in confidence so that the domestic violence victim may maintain his or her privacy, but also obtain the appropriate level of support either through counseling or an employee assistance program.
3. Provide Victims with Leave and Accommodation
It is critical to provide domestic violence victims with the assistance they need in terms of leave and time off to tend to injuries, attend court appearances and obtain social services. Victims also may need to be provided with accommodations so that they can effectively perform their jobs. Employers should be aware that a number of state laws specifically provide leave and time off or domestic violence victims to attend court hearings or seek medical treatment or counselling. Other employees may be permitted to take time off under federal or state family and medical leave acts in order to treat domestic violence injuries if the injuries rise to the level of a serious health condition. Further, some employers may adopt procedures that allow employees to use sick time, vacation time, personal time or disability leave to take time off for domestic violence issues.
An employer also may want to consider providing reasonable accommodations to domestic violence victims such as:
- Changing the victim's work schedule;
- Transferring the victim;
- Changing the parking arrangements;
- Separating a perpetrator and a victim if both work for the employer;
- Allowing alternative work hours; or
- Screening contact between the perpetrator and the victim.
In fact, some states now require an employer to provide domestic violence victims with the reasonable accommodations necessary to perform their jobs safely.
4. Avoid Discriminating Against Domestic Victims
An employer should make sure that it does not discriminate against domestic violence victims. On the federal level, an employer may be liable for discrimination against a domestic violence victim based on sex or disability. On the state level, some state EEO laws specifically prohibit discrimination and retaliation against domestic violence victims and provide protected class status. In light of potential employer liability, it is essential for an employer to institute policies and procedures banning discrimination against victims of domestic violence, sexual assault and stalking. Further, if an employer must take adverse employment action against a domestic violence victim, the employer should make sure that there is a legitimate nondiscriminatory reason for doing so.
5. Increase Safety Measures
It is important for an employer to have the appropriate safety measures in place as domestic violence may follow the employee to work and directly jeopardize the safety of the workforce. For example, a perpetrator may stalk the victim at work, call or visit the workplace repeatedly or interfere with and disrupt workplace productivity. Under the General Duty Clause of the Occupational Safety and Health Act (OSH Act), an employer is obligated to provide a safe and secure workplace for all employees, and may be liable for failing to protect employees from harm. Additionally, if an employer fails to adequately protect its workforce from violence, the employer may face tort liability and risk claims of negligence, negligent failure to warn and intentional infliction of emotional harm. In the very worst of scenarios, domestic violence victims and their co-workers may face serious harm and even death.
Therefore, if an employer knows or should know that an employee is a domestic violence victim, it should privately consult with the victim and assess the safety risk. It may be a good idea to develop a safety plan ensuring the safety and well-being of the employee and co-workers and the steps to take if the perpetrator gains access to the workplace. The employer may want to consider increasing security measures and protections such as changing locks or key cards, hiring additional security guards, transferring the employee, changing the employee's hours, alerting the police and making the identity of the perpetrator known.