Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

36 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP Leave taken pursuant to ARDV can be paid or unpaid. 179 Employers may require employees to exhaust other available leave before taking leave but are not required to do so. 180 An employee must provide his or her employer with “appropriate” advance notice of an intent to take leave. 181 The law does not specify any particular amount of time for “appropriate” notice. Advance notice is not required, however, when there is a threat of imminent danger to the health and safety of an employee or the employee’s family member. 182 Under those circumstances, the employee, or anyone assisting the employee in addressing the abusive behavior, may notify the employer within three workdays following the employee’s absence that the absence was to address issues relating to abusive behavior. 183 Such notice may be written or oral. 184 In addition, if an unscheduled absence occurs and the employee provides appropriate documentation within thirty days, the employer cannot take any negative action against the employee. 185 An employer may require documentation to substantiate the need for leave under ARDV, and the employee must provide such documentation within a reasonable period after the employer makes such a request. 186 Acceptable forms of documentation include: a court-issued protective order; an official document from a court, provider, or public agency; a police report or statement of a victim or witness provided to the police; official legal documentation attesting to perpetrator’s guilt; medical documentation of treatment for the abusive behavior; a sworn statement from the employee attesting to being a victim of abusive behavior; a sworn statement from a professional who has assisted the employee or the employee’s family (for example, a counselor, a social worker, or a member of the clergy). 187 All information related to an employee’s leave must be kept confidential and may only be shared in specific enumerated circumstances: (1) with the employee’s written permission; (2) when required to do so by law or in order to cooperate with law enforcement; or (3) if the disclosure is necessary to protect the health and safety of the employee or coworkers. 188 179 M.G.L. ch. 149, § 52E(b)(iii). 180 M.G.L. ch. 149, § 52E(g). See also Massachuset t s At torney General Advisory ConcerningM.G.L. ch. 149, § 52E, available at ht tp://www.mass.gov/guides/breaks-and-t ime-off#domest ic-violence-and-abusive-situat ion-leave (hereinafter, “ A.G. Advisory Concerning ARDV ”) (last visited July 16, 2021. 181 M.G.L. ch. 149, § 52E(d). 182 Id . 183 Id. 184 See A.G. Advisory Concerning ARDV , supra note 177. 185 M.G.L. ch. 149, § 52E(d). 186 M.G.L. ch. 149, § 52E(e). 187 Id. 188 M.G.L. ch. 149, § 52E(f).