Nevada's New Domestic Violence Leave and Accommodation Laws

By Kamer Zucker Abbott

August 7, 2017

Senate Bill 361, passed by the Nevada Legislature and signed into law by Governor Sandoval, requires employers to provide leave and reasonable accommodations to employees who are victims of domestic violence or whose family or household members are victims of domestic violence. It also imposes new record-keeping and posting requirements regarding domestic violence leave, as well as establishes new anti-discrimination and anti-retaliation obligations. Employers must be ready to comply with these new legal requirements, effective January 1, 2018. Let's review what is required.

Domestic Violence Leave

Pursuant to Section 1 of Senate Bill 36, new language has been added to NRS 608.180 requiring all Nevada employers to provide not more than 160 hours of leave in a "one 12-month period" to an employee who: (1) has been employed for at least 90 days; and (2) is a victim of an act of domestic violence or whose family or household member is a victim of an act of domestic violence.

The term "domestic violence" has the same meaning as set forth in NRS 33.018 and includes: assault; sexual assault; false imprisonment; unlawful or forcible entry into another person's residence; purposeful or reckless acts, such as stalking, arson, trespassing, larceny, destruction of private property, carrying a concealed weapon without a permit, injuring or killing an animal; and compelling a person by force or threat of force to perform an act from which the person has the right to refrain or to refrain from an act which the other person has the right to perform.

The definition of "family or household member" broadly includes: the employee's spouse, domestic partner, minor child, parent or other adult person who is related within the first degree of consanguinity or affinity to the employee (parents and children), and any other adult person who is or was actually residing with the employee at the time of the act which constitutes domestic violence, but excluding the "the alleged perpetrator."

Domestic violence leave must be used within the 12-month period immediately following the date on which the act of domestic violence occurs. It may be paid or unpaid and used consecutively or intermittently for one or more of the following specific purposes:

•    For the diagnosis, care or treatment of a health condition related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;

•    To obtain counseling or assistance related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;

•    To participate in any court proceedings related to an act which constitutes domestic violence committed against the employee or family or household member of the employee; or

•    To establish a safety plan, including, without limitation, any action to increase the safety of the employee or the family or household member of the employee from a future act which constitutes domestic violence.

For employers subject to the Family Medical Leave Act ("FMLA"), if the reason for domestic violence leave is also a FMLA-qualifying reason, the domestic violence leave must be deducted concurrently from both banks of leave.

After taking any leave upon the occurrence of an act of domestic violence, an employee is required to give his/her employer not less than 48 hours' advance notice of the need to take additional leave.

Employers are permitted to request documentation to confirm or support the reason for domestic violence leave, including a police report, a copy of any application for an order for protection, an affidavit from an organization which provides services to victims of domestic violence, or documentation from a physician. Any such documentation provided to an employer is confidential and must be retained by the employer in a manner consistent with the requirements of the FMLA.

Reasonable Accommodations

Section 6 of Senate Bill 361 creates new provisions in Chapter 613 of the Nevada Revised Statutes requiring employers to provide reasonable accommodations to an employee who is a victim of domestic violence or whose family or household member is a victim of domestic violence, which do not create an undue hardship. Reasonable accommodations may include: a transfer or reassignment; a modified schedule; a new telephone number for work; or any other reasonable accommodation deemed necessary to ensure the safety of the employee, the workplace, the employer or other employees. An employer may require documentation to confirm or support the reasons for any such accommodation.

Prohibited Conduct

Section 1 of Senate Bill 361 also provides that employers are specifically prohibited from denying an employee the right to use domestic violence leave in accordance with the new law; requiring an employee to find a replacement worker as a condition to using domestic violence leave; and retaliating against an employee for using domestic violence leave. Additionally, Section 7 of Senate Bill 361 makes it unlawful for any employer to discharge, discipline, discriminate against in any manner or deny employment or promotion to, or threaten to take any such action against an employee because the employee: asked for domestic violence leave time; participated as a witness or interested party in court proceedings related to an act of domestic violence which triggered the use of domestic violence leave; requested an accommodation because of an act of domestic violence event; or was subjected to an act of domestic violence committed in his/her workplace.

Notice Posting

Employers must also post in a conspicuous location in each workplace a bulletin prepared by Nevada Labor Commissioner setting forth employees' rights under the new law.

Record-Keeping Obligation

Further, employers are required to maintain a record of the hours of domestic violence leave taken by each employee for a 2-year period following entry of such information in said record. The Nevada Labor Commissioner has the right to inspect such records upon request.

Enforcement and Penalties

The Nevada Labor Commissioner is charged with the enforcement of the new legal requirements added pursuant to Section 1 of Senate Bill, with violations constituting a criminal misdemeanor and also possibly resulting in an administrative penalty of $5,000.00 per violation.

Unfortunately, there is no specific language addressing how the reasonable accommodation requirements and anti-discrimination prohibitions in Sections 6-7 of Senate Bill 361 will be enforced.

Conclusion

As with many new employment laws, there will be many questions of interpretation and application. For example, in addition to how the reasonable accommodation requirements and anti-discrimination prohibitions will be enforced, there is an open issue as to what parts of the new law pertain to Nevada's public employers. Some ambiguity also exists as to how employers are to apply the "one 12-month period" measurement for domestic violence leave in the event an employee were to experience multiple instances of domestic violence. These issues will need to be addressed with guidance and regulations from the Nevada Labor Commissioner.

In the meantime, employers should begin to update their leave policies and employee handbooks to address these new legal obligations, as well as provide training to their supervisors and managers concerning the same, so they are ready by January, 2018.

Please feel free to contact a KZA attorney to discuss any questions you may have about these new requirements.