Original Article: Jessica R.W. Bungay and Michèle Brown-Gellert, Mondaq | September 19, 2018
Recent legislative changes in New Brunswick have introduced a new employment leave available for employees: Domestic Violence Leave, Intimate Partner Violence Leave or Sexual Violence Leave ("Violence Leave"). This new leave will provide important workplace protection for employees who have experienced domestic, sexual or intimate partner violence.
What are the changes?
Effective September 1, 2018, employees in New Brunswick will be entitled to a leave of absence if they, or their child, are victims of domestic, sexual or intimate partner violence. The changes are the result of amendments to the Employment Standards Act and the enactment of the Domestic Violence, Intimate Partner Violence or Sexual Violence Leave Regulation – Employment Standards Act("Regulation").
Employees must have been employed for more than ninety (90) days to be eligible for Violence Leave. Further, an employee can take a Violence Leave if his or her child is the victim.
Length of Leave
An employee is permitted to take more than one Violence Leave in any given year. There are two different types of Violence Leave available:
(1) a Violence Leave of up to ten (10) days which may be taken intermittently or in one continuous period; and
(2) a separate Violence Leave of up to sixteen (16) continuous weeks.
Employees are entitled to take both types of Violence Leave in any given year.
Financial Obligation of Employers
The first five (5) days of Violence Leave taken in a calendar year must be paid by the employer. If more than five (5) days of Violence Leave is taken by the employee, the remaining period of the Violence Leave may be unpaid.
The rate of pay an employee receives during the first five (5) days of the Violence Leave is equal to the wages the employee would have earned during the applicable period.
If the wages of the employee vary from day to day, the rate of pay the employee is to be paid will be equivalent to the employee's average daily earnings exclusive of overtime for the days on which the employee worked during the thirty (30) days immediately preceding the applicable period.
Reasons for Leave
Employees only have the right to take Violence Leave for one of the following reasons:
- to seek medical attention for the employee or the child of the employee for a physical or psychological injury or disability caused by the domestic violence, intimate partner violence or sexual violence;
- to obtain victim services for the employee or the child of the employee from a qualified person or organization;
- to obtain psychological or other counselling from a qualified person for the employee or the child of the employee;
- 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, intimate partner violence or sexual violence; or
- for any other purpose related to or resulting from the domestic violence, intimate partner violence or sexual violence.
Further, an employee who intends to take a Violence Leave will need to inform the employer, in writing, of the purpose for which the leave is to be taken. In the written notice, the employee is required to make reference to the reason for the Violence Leave.
Steps Employers Should Take to Ensure Compliance
- Implement or revise workplace policies to address the new Violence Leave.
- Provide training to management and human resources personnel on the impact of the new leave entitlements and how to respond sensitively to an employee who takes a Violence Leave. Training should consider issues of privacy and confidentiality.
- Implement a procedure for tracking the amount of Violence Leave taken by an employee. Ensure the first five (5) days of Violence Leave in any calendar year are paid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.