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The Essentials of Domestic Violence Leave

Published September 06, 2019 (last updated December 3, 2020) Author: Employsure

According to the New Zealand Family Violence Clearinghouse, there were 118,910 instances of domestic violence investigated by police in 2016 alone. The current statistics report over one in three women will experience domestic violence (otherwise known as intimate partner violence) throughout their entire lifetime. Which is exactly why the new workplace protections for those affected by domestic violence have become necessary.

What are affected employees entitled to?

 Under the legislation update, affected employees are entitled to:

“Flexible working arrangements” is a broad umbrella term for several accommodations. The most prominent inclusion is the option to relocate, which may mean working from home or another branch within the company. This may also entail a temporary change in duties.

Flexible working arrangements also includes a change or complete redaction of an employee’s contact information from company materials. This is due to issues of privacy i.e. an employee’s details falling into the wrong hands.

Who is eligible?

Any employee affected by domestic violence can qualify for paid domestic violence leave, even if the instance of domestic violence occurred before the current employment. Employees may also qualify if they live, from time to time, with a child affected by domestic violence.

To access the 10 days paid leave, an employee must have:

  1. been employed by an employer continuously for at least six months, or
  2. worked for an employer a minimum average of 10 hours a week (and at least one hour each week or 40 hours each month) in those six months

Domestic violence leave cannot be accrued or paid out should the affected employee leave their position of employment.

Is there a standard of proof?

While there is no legal standard of proof when it comes to domestic violence leave or short-term flexible working arrangements, employers may request supporting evidence. If an employer wishes to do so, they are required to notify the employee within three working days of the initial request for short term flexible working arrangements.

There are various formats of supporting evidence that are considered acceptable. Some examples include:

  • letter/email from a support organisation or support person
  • report from a school or medical professional
  • statutory declaration notarised by an authorised figure
  • police or court documents relevant to the matter

Employers must respond to all requests for short term flexible working arrangements within 10 working days.

Can employers deny a request?

Yes, employers may deny a request. But this needs to be justified by specific terms.

For flexible work requests, the first justification is if the employer did not receive proof within 10 working days of the request due to the employee’s refusal to submit proof or otherwise.  The second justification is when the employer “… cannot reasonably change working arrangements…”. This is known as a “non-accommodation ground” and encompasses anything from financial burden to an inability to cover the staff’s absence.

In addition, an employer is not required to pay the employee for any domestic violence leave where the employer has asked for reasonable proof, and the employee has failed to comply without a reasonable excuse.

Keep in mind that an employer can be penalised for failing to comply with the rules regarding short term flexible work and domestic violence leave. If an employer is refusing a request, they should consider alternatives that they can propose to help support the employee.

The best way employers can approach this?

Domestic violence is a delicate matter. Treat it accordingly. It’s crucial that an employer remembers to be discrete and empathetic above all else. Make sure you have a policy and that managers have been trained on how to respond if someone mentions domestic violence.  While adapting to the circumstances may present itself as a challenge, it’s also crucial that an employer does not make a decision based on convenience. This is a complex matter of emotions paired with equally complex experiences – so there may not be always be an easy solution available.

The health, safety, and well-being of the affected employee should always be the number one priority.

About Employsure

Employsure is one of New Zealand’s largest workplace relations advisers to small and medium businesses, with over 5,500 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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