It can be so confusing to understand whether and when an employee’s missed shift can be grounds for discipline.
For example, you can’t discipline an employee, even if they call off at the last minute, if they have statutory sick leave available and the reason for the call off was not foreseeable. For example, their kid came down with the stomach flu in the car on the way to school. But you can discipline an employee for not informing you of a planned medical appointment, for getting a flat tire, or missing the bus.
The current law regarding time off taken for crime victims, and for assisting family members who are crime victims, is already complicated. If the business has 25 or more employees, it provides protected time off for employees who take time off from work to:
- Seek medical attention for injuries caused by crime or abuse;
- Obtain certain services as a result of that crime or abuse; and
- Participate in safety planning arising from that crime or abuse.
Now AB2499 makes this landscape even more complicated to administer. Time off is now allowed not just for “crime or abuse” but for a “qualifying act of violence,” which is defined as any of the following, regardless of whether anyone is arrested for, prosecuted for, or convicted of committing any crime:
- Domestic violence.
- Sexual assault.
- Stalking.
- An act, conduct, or pattern of conduct that includes any of the following:
- In which an individual causes bodily injury or death to another individual.
- In which an individual exhibits, draws, brandishes, or uses a firearm, or other dangerous weapon, with respect to another individual.
- In which an individual uses, or makes a reasonably perceived or actual threat to use, force against another individual to cause physical injury or death.
Employers must allow employees to use vacation, paid sick leave, personal leave, or other time off available to them. An employer may also count it as time off under the FMLA/CFRA for eligible employees. And employers must provide reasonable accommodations too, which one assumes could be unscheduled time off.
These provisions are now part of California’s FEHA and can be enforced by the Civil Rights Division. There will be a new flyer to provide to employees upon hire, and to all employees annually, at any time upon request, or when the employee informs an employee that they or a family member is a crime victim.
Of course, at one level, this all makes sense. Victims should have rights to time off for medical or safety reasons without worrying about being fired. However, despite good intentions, the practical implications are hard to ignore. How is an employer supposed to know if the time off an employee takes is protected? Sure, an employee can make a written request to Human Resources and explicitly state why they need time off because they were assaulted and/or stalked. Perhaps they even provide a police report. That is an easy case. But we all know it doesn’t usually work that way.
Rather, an employee under stress from domestic violence, sexual assault, stalking, or some other violent conduct (such as being threatened or having a firearm brandished at them), won’t always be in the frame of mind to clearly communicate a time off request. And if they do suggest it, most managers won’t necessarily understand that having a sibling who was threatened with a gun, for example, is justification for missing work. And what if the employee just mentions it in passing to a manager outside of a request for time off? For example, “I am having issues with my girlfriend.” Or writes something vague in the online messaging system? Is that sufficient knowledge by the company to trigger the protected time off? Or is it up to the employee to be specific? I already get these disputes about what the company knew (or was expected to know) and anticipate there will be even more of such disputes going forward.
Bottomline, the best thing an employer can do is train its managers to get information about why shifts are missed from employees right away, to document those reasons, and to escalate to Human Resources to ensure time off reasons are not protected before issuing discipline.
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