Governments have been steadily increasing statutory leaves of absence entitlements to help employees deal with various personal issues without fear of losing their jobs. The Manitoba government is raising the bar by introducing groundbreaking proposed changes to the Employment Standards Code that would give victims of domestic violence the right to time off work without fear of job loss, give employees a new leave for long-term illness and injury, and extend the length of leave for compassionate care.
Bill 8, The Employment Standards Code Amendment Act (Leave for Victims of Domestic Violence, Leave for Serious Injury or Illness and Extension of Compassionate Care Leave) was introduced in legislature on November 25, 2015.
This article deals with the proposed domestic violence leave.
Domestic violence leave requirements
(Some paraphrase of the Bill may occur)
The new domestic violence leave under the Code would allow a victim of domestic violence who has been employed by the same employer for at least 90 days to take an unpaid leave of absence in each 52-week period (each year) as follows:
- Up to 10 days, which the employee may choose to take intermittently or in one continuous period or
- Up to 17 weeks to be taken in one continuous period
An employee would be entitled to a domestic violence leave for the following reasons:
- To seek medical attention for the employee or the employee’s child in respect of a physical or psychological injury or disability caused by the domestic violence
- To obtain services from a victim services organization
- To obtain psychological or other professional counselling
- To relocate temporarily or permanently
- To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence
- Any other prescribed purpose (i.e., as may be found in regulations)
The 10 days could be used in a row, or as needed throughout the year, for things like doctor’s appointments, court dates or to make police reports. The 17 weeks could be used, for example, to move into a new home or shelter or take time to recover from a domestic violent incident or relationship.
An employer may require an employee who takes the unpaid leave to provide the employer with reasonable verification of the necessity of the leave that meets the above requirements.
The Bill states that “domestic violence” means domestic violence within the meaning of subsection 2(1.1) of The Domestic Violence and Stalking Act that is caused by an act or omission of a person described in subsection 2(1) of that Act.
Who commits “domestic violence”
2(1) Domestic violence occurs when a person is subjected to an act or omission mentioned in subsection (1.1) by another person who
(a) is cohabiting or has cohabited with him or her in a spousal, conjugal or intimate relationship;
(b) has or had a family relationship with him or her, in which they have lived together;
(c) has or had a family relationship with him or her, in which they have not lived together;
(d) has or had a dating relationship with him or her, whether or not they have ever lived together; or
(e) is the other biological or adoptive parent of his or her child, regardless of their marital status or whether they have ever lived together.
Meaning of “domestic violence”
2(1.1) The following acts and omissions constitute domestic violence:
(a) an intentional, reckless or threatened act or omission that causes bodily harm or property damage;
(b) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or property damage;
(c) conduct that reasonably, in all the circumstances, constitutes psychological or emotional abuse;
(d) forced confinement;
(e) sexual abuse.
An employee who wishes to take a leave must give the employer as much notice as is reasonable and practicable in the circumstances.
Five of these days may be paid if the employee indicates to the employer when giving notice that they wish to take the leave of absence, which of the days are to be paid.
The amount an employer must pay an employee for a paid day of leave must not be less than
- The wage the employee would have been paid had the employee worked his or her regular hours of work on the day of leave; or
- Five percent of the employee’s total wages, excluding overtime, for the four-week period immediately preceding the day of leave if: The number of hours worked by the employee in a normal workday varies from day to day, or The employee’s wage for regular hours of work varies from day to day
However, despite the above option of five paid days, an employer who provides paid sick leave benefits or other paid leave benefits that are greater than the minimum required by this Code, may require that an employee use those benefits for paid days of leave instead.
An employee who takes a paid leave must provide the employer with reasonable verification of the necessity of the leave that meets the above requirements.
If an employee takes any part of a day as leave, the employer may count that day as a full day of leave.
Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of 17 weeks by giving the employer written notice at least 2 weeks before the day he or she wishes to end the leave.
An employer must maintain confidentiality in respect of all matters that come to the employer’s knowledge in relation to a domestic violence leave taken by an employee. The employer will not disclose information relating to the leave to any person except to employees or agents who require the information to carry out their duties, or as required by law, or with the consent of the employee to whom the leave relates.
A person who receives that confidential information from a disclosure must not disclose it to any other person unless it is to be used for the purpose for which it was originally disclosed or for a different purpose authorized by the above.
Employers must retain any and all documentation related to this leave including copies of documents relating to the disclosure of information; to any paid days of leave taken by an employee; records of the dates and number of days taken as paid leave and the amount paid to the employee for each paid day of leave; types of certificates or other documentation that are acceptable to justify the leave, what information they must contain and when they must be provided.
If passed, the Bill is scheduled to come into force April 1, 2016. However, sections 2–4, 6 and 8–12; clause 5(1)(b); and section 7, insofar as it enacts section 59.11, come into force on proclamation.
Why does Manitoba need a domestic violence leave?
A January 2015 Statistics Canada report indicated there were over 90,300 victims of domestic violence in 2013. Women accounted for almost 80 percent of intimate partner victims reported to police.
In 2013, it was reported that Manitoba had the second highest incident rate of violence against women in Canada.
Labour and Immigration Minister Erna Braun states that the “Can Work Be Safe When Home Isn’t?” survey clearly showed a significant number of workers experience domestic violence, and that the violence follows people to work, putting jobs and workplace safety at risk. The minister noted the proposed legislation builds on Manitoba’s Multi-year Domestic Violence Prevention Strategy, introduced in 2012, which recognizes the importance of using a comprehensive approach to ending domestic violence.
Kevin Rebeck, president of Manitoba Federation of Labour added, “There are so many other barriers to leaving abusive relationships … Worrying about losing your job shouldn’t have to be another one. Job protection and income security can make the critical difference in supporting victims to escape violence.”
SAFE Work Manitoba, the provincial prevention organization responsible for promoting and delivering services related to workplace injury and illness prevention would support the proposed legislation by educating employers about domestic violence and practical strategies to make workplaces safer, Minister Braun said.
An effective harassment and violence prevention program will now include domestic violence training.
This certainly seems like a positive development for workers and hopefully employers will also find it beneficial. However, there will be substantial challenges, besides simply providing a few extra days or weeks off to an employee victim of domestic violence. Staff—especially managers—will need training to recognize signs of domestic abuse and to address it with sensitivity and confidentiality. Procedures to prove the legitimacy of leave claims and maintain confidentiality throughout the leave process will be essential—and potentially complicated. The government will need to offer ongoing support to organizations.
Regardless of the challenges, it will be very interesting to see the results of this law (if it passes). The true test will be whether it improves the lot of domestic violence victims. I’m sure other jurisdictions will be watching.