By Wendy J. Baker
In a span of only three months, our community has witnessed six homicides and two post-homicide suicides, each involving current or former family members or their partners. In our shared grief and shock, we ask how these tragedies could have been prevented. While none of us has a clear answer, employers should be aware that they have obligations to victims of domestic violence.
For example, Oregon law requires employers who have six or more employees to provide safety accommodations for victims of domestic violence, sexual assault or stalking. The law also prohibits employers from discharging or demoting such individuals and requires employers to provide leave for victims to seek legal or medical help. To qualify, the employee must have worked more than 25 hours per week for the 180 days immediately preceding the leave.
It may come as no surprise that these rules are somewhat vague and open to interpretation. Until they have been tested and vetted through years of uneasy experience, employers will have to do the best they can to follow them.
The regulations broadly define "victim of domestic violence" as (1) an individual who has been threatened with abuse or is a victim of abuse; or (2) any other person who has suffered financial, social, psychological or physical harm as a result of domestic violence. "Abuse" is defined in a separate statute as:
- Attempting to cause or intentionally, knowingly or recklessly causing bodily injury;
- Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury; or
- Causing another to engage in involuntary sexual relations by force or threat of force.
The law makes it an unlawful employment practice to "refuse to make a reasonable safety accommodation" if one is requested. A reasonable safety accommodation could include "a transfer, reassignment, modified schedule, unpaid leave, changed work telephone number, changed work station, installed lock, implemented safety procedure or any other adjustment to a job structure or workplace facility."
One of my colleagues recently mentioned that her client paid for an employee's extended stay in a motel in an attempt to help the employee stay safe. While this employer should win a purple heart, such a gesture is certainly not required under the law.
Prior to making a reasonable safety accommodation, an employer may require an individual to provide certification that the individual is a victim of domestic violence, sexual assault or stalking. Any of the following constitutes sufficient certification:
- A copy of a police report;
- A copy of a protective order or other evidence from a court or an attorney showing that the employee has, or is preparing to, appear in a civil or criminal proceeding related to domestic violence, sexual assault or stalking;
- Documentation from an attorney, police officer, health care professional, licensed mental health counselor, clergyman or victim services provider that the employee was or is undergoing treatment or relocating as a result of domestic violence, sexual assault or stalking.
- An employer is required to provide unpaid leave so that an employee may:
- Seek legal assistance to ensure the health and safety of the employee or the employee's minor child, including time to prepare for legal proceedings;
- Seek medical treatment or recover from injuries to the employee or to a minor child;
- Obtain, or assist a minor child in obtaining, counseling from a licensed mental health professional;
- Obtain services from a victim services provider;
- Relocate or take steps to secure an existing home to ensure the safety of the employee and the employee's children.
To the extent that the employee's leave is also covered by Oregon's Family Medical Leave Act, the employer may run the two types of leave concurrently.
The law provides an "undue hardship" exception for employers. For example, a very small business may not be able to change an employee's work station as a reasonable safety accommodation. Any employer who wants to invoke undue hardship should not only seek legal guidance before making a decision but should also take into account that the employee's life could be at stake.
Wendy Baker is a licensed Oregon attorney who specializes in employer-side labor and employment matters, including day-to-day advice and defense of discrimination, retaliation and wage-and-hour claims. She can be reached at 541-345-0753 or at wendy.baker@employerlaw.org. Her office is located at 100 West 13th Avenue, Suite 200, in Eugene. For more information on her practice or to access helpful employment law information, go to www.employerlaw.org.
