Illinois recently joined the growing number of states in passing a domestic violence protection law. The Victims’ Economic Security and Safety Act (VESSA)2 passed on August 25, 2003, became effective the same day, and is by far the broadest state legislation in the ongoing battle to protect victims of domestic violence and their families from the employment, economic and safety-related issues connected with domestic violence. This article explores the need for the new legislation, introduces the reader to VESSA, and provides direction for employers seeking to implement the new statute.
VESSA offers 12 weeks of leave during any 12-month period, among many other protections. Other states, including California, Colorado, Hawaii, Maine, and New York3 have passed similar domestic violence laws. Additionally, New York City and Miami-Dade County have passed their own versions of VESSA.4 A similar law with the same name was also introduced in the U.S. Senate on July 25, 2001, by Sen. Wellstone, Paul [MN]. Unfortunately, the federal government’s version of VESSA, Senate Bill 1249 (107th Congress) did not reach the floor of either the House of Representatives or Congress. However, the bill is expected to be re-introduced in the 108th Congress in early 2004.
Nevertheless, none of these laws, even the proposed federal version, offer such generous benefits for covered employees and their families than Illinois’ VESSA.5 VESSA gives victims of domestic and dating violence, stalking, and sexual assault the economic security necessary to escape a violent relationship. Specifically, VESSA provides unpaid leave and protection from employment and insurance discrimination for victims of domestic and sexual violence. Thus, VESSA is an important next step for Illinois to provide survivors of domestic and sexual violence with the tools they need to remain safe, without having to sacrifice their employment or economic security in the process.
II. DOMESTIC VIOLENCE STATISTICS
Each year, approximately two million women6 are physically or sexually assaulted or stalked by an intimate partner in the United States. Men can be victims of intimate partner abuse, as well: more than 800,000 men are raped and/or assaulted by a partner and 1 in 1,000 men are victimized by a partner every year.7 Domestic violence creates safety and health issues with personal, economic, medical, emotional, and professional consequences. For employees who are victims of domestic violence, medical care costs are higher, on average, for survivors than for employees who are not subject to domestic violence. Victims use the emergency room more often, visit physicians more often, and use more prescription drugs than other employees.8 Studies estimate that physician visits are twice as frequent and medical costs are 2 ½ times as high for battered women than for non-battered women.9 Furthermore, abusers often sabotage their victims’ ability to work productively by threatening, attacking, stalking, or harassing their victims at work.10 Studies suggest that approximately 75 percent of domestic violence victims face harassment from intimate partners while at work.11 Thus, although domestic violence usually occurs within the home, it can carry over into the workplace in many ways. For example, employers often pay for the medical consequences of domestic violence because employers often provide health insurance for their employees. In addition, domestic violence victims experience impaired work performance and require more time off than employees who are not abused.12 Specifically, victims of domestic violence experience a broad range of emotional consequences which can adversely affect employee productivity, including anxiety, depression, and low self-esteem.13
Employers recognize the negative effects of domestic violence: when asked, 49 percent of senior managers and 78 percent of human resource directors felt that domestic violence has a negative effect on their companies due to increased levels of absenteeism, low productivity, and higher health care costs.14 They are correct. It is estimated that higher medical costs and diminished productivity levels cost employers between $3-5 billion every year. Additionally, employers lose $100 million in lost wages, paid sick leave, and absenteeism linked to domestic violence.15 However, studies show the majority of employers do not feel that they should become involved in preventing domestic violence due to a number of outdated beliefs regarding domestic violence, such as domestic violence is a personal matter handled best within a family rather than by employers or law enforcement agencies.16
As one can see, it is imperative that survivors are protected from employment discrimination, as they are acutely vulnerable to changes in employment, pay, and benefits. According to a 1998 report of the U.S. General Accounting Office, between one quarter and one half of domestic violence victims surveyed in three studies reported that they lost a job due, at least in part, to domestic violence.17 Similarly, almost fifty percent of sexual assault survivors lose their jobs or are forced to quit in the aftermath of the crime.18 More than one quarter of stalking victims report losing time from work due to stalking and seven percent never returned to work.19
Abusers also sabotage welfare recipients’ efforts to comply with work and other program requirements. As many as 70% of women on welfare report having been a victim of intimate violence at some point in their adult lives, and as many as 30% report abuse within the last year.20 Welfare recipients who are currently experiencing abuse report that their abuser sabotages work efforts by increasing the violence before a big event such as an exam or interview, refusing to provide transportation or child care at the last minute, or inflicting emotional abuse on the survivor for leaving the children.21
Though survivors are often hit hardest by economic insecurity, no state previously prohibited workplace discrimination based on status as a survivor. VESSA should reduce the occurrence of job loss and welfare sanctions for survivors by: (1) providing job leave for employees who need time off to deal with the special effects of domestic violence; (2) requiring employers to reasonably accommodate the known limitations of survivors; and (3) prohibiting employers from discriminating against or firing survivors of domestic or sexual violence when they are dealing with such violence.
The stated purpose of the VESSA is to "entitle victims to seek medical help, legal assistance, counseling, safety planning and other assistance without penalty from their employers."22 Integrating elements of the Family and Medical Leave Act of 1993 ("FMLA") and the Americans with Disabilities Act of 1990 ("ADA"), VESSA specifically requires Illinois employers to provide up to 12 weeks of unpaid leave and reasonable accommodations to victims of domestic or sexual violence. VESSA also bars discrimination against survivors and their families. The following is a summary of VESSA’ specific provisions:
A. BUSINESSES COVERED BY VESSA
VESSA applies to "covered employers," which are defined as the State of Illinois, any unit of local government or school district, and any "individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons" that has 50 or more employees.23 Unlike the FMLA, there is no requirement under the VESSA that the 50 employees be employed within a defined geographic area.
B. EMPLOYEES COVERED BY VESSA
All Illinois employees of a covered employer are entitled to VESSA leave, regardless of whether they work full-time or part-time.24 Also unlike the FMLA, an employee need not work a specific number of months or hours to be eligible for leave.
C. WHAT TRIGGERS VESSA?
VESSA entitles an employee to leave work if the individual is a victim of domestic or sexual violence or has a family or household member who is such a victim (and whose interests are not adverse to the employee as it relates to the domestic or sexual violence) and the leave is for one or more of the following reasons: (1) seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or the employee’s family or household member; (2) obtaining services from a victim services organization for the employee or the employee’s family or household member; (3) obtaining psychological or other counseling for the employee or the employee’s family or household member; (4) participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee’s family or household member from future domestic or sexual violence or ensure economic security; or (5) seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic or sexual violence.25
An eligible employee is entitled to up to 12 workweeks of unpaid leave during any 12-month period.26 This leave may be taken either on an intermittent or a reduced work schedule basis.27 Although VESSA leave is unpaid, "[a]n employee who is entitled to take paid or unpaid leave (including family, medical, sick, annual, personal, or similar leave) from employment, pursuant to federal, State, or local law, a collective bargaining agreement, or an employment benefits program or plan, may elect to substitute any period of such leave for an equivalent period of leave provided under [VESSA]."28
VESSA specifies that it does not create a right to take unpaid leave that exceeds the unpaid leave time permitted by the FMLA.29 This leaves VESSA open to the obvious argument that it is discriminatory against employees who exercise their FMLA rights. However, this seemingly invalid provision will most likely be tested in the courts.
D. "FAMILY OR HOUSEHOLD MEMBERS"
Under VESSA, a "family or household member" is a spouse, parent, son daughter, or any person jointly residing in the same household.30 The term "parent" is further defined to include not only a biological parent, but also an individual who stood in loco parentis to an employee when the employee was a child. "Son or daughter" is defined as "a biological, adopted, or foster child, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age, or is 18 years of age or older and incapable of self-care because of a mental of physical disability."31
E. "DOMESTIC OR SEXUAL VIOLENCE"
VESSA defines the terms "domestic" and "sexual" violence as "domestic violence, sexual assault, or stalking."32 "Domestic violence" is further defined as including "acts or threats of violence, not including acts of self defense, required where the need for such leave is foreseeable in advance." Additionally, "sexual assault," "domestic violence," and "stalking" are further defined by reference to specific sections of the Illinois Domestic Violence Act of 1986 and the Criminal Code of 1961.33 The criminal code definitions of these terms are intricate. For example, "stalking" is defined in part as when an individual "knowingly and without lawful justification, on at least two separate occasions follows another person or places the person under surveillance or any combination thereof and . . . places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint, …"34 Although these definitions may appear to be vague, they should be a start to protecting those who really have been victims.
F. EMPLOYER CERTIFICATION
Under VESSA, an employer may require that the employee provide certification both that the employee or the employee’s family or household member is a victim of domestic or sexual violence and that the leave is for one of the VESSA’s enumerated purposes describe above.35 Certification must be provided within a "reasonable period" after the employer requests certification.36 If practicable, the employee is required to give his or her employer at least 48 hours’ advance notice of the employee’s intention to take leave.37 However, the employer may not take any action (e.g., a suspension of termination) against the employee if the employee provides certification within a reasonable period after the absence, even if an employee is unable to provide 48 hours’ advance notice of the leave.38
An employee may satisfy the certification requirement by providing to the employer a sworn statement and, when received by the employee, other corroborating evidence, such as a police or court record or documentation from a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the employee or the employee’s family or household member has sought assistance regarding domestic or sexual violence.39 Additionally, an employer may require an employee on VESSA leave to report periodically on the status and intention of the employee to return to work.40
The fact that the employee has requested or obtained VESSA leave and all information provided to an employer pursuant to the notice and certification requirements, "shall be retained in the strictest confidence by the employer," except to the extent that disclosure is requested or consented to in writing by the employee, or otherwise required by applicable federal or state law.41 This is so the survivor does not have to worry about unnecessary and often inaccurate gossip while at work or on leave.
H. RETURN FROM VESSA LEAVE
Like the FMLA, employees on VESSA leave are entitled to return to the same or an equivalent position (i.e., equivalent in pay, benefits and other terms and conditions of employment).42 Additionally, VESSA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.43 However, VESSA does not create an entitlement to the accrual of seniority or other "employment benefits" (e.g., sick leave or educational benefits) while on leave, or any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken leave.44 For example, courts have concluded that similar language in the FMLA does not protect an employee from dismissal while on leave if the employer would have terminated the employee even if the employee had not been away on leave.45 It seems likely that courts will interpret the language in VESSA similarly.
I. MAINTENANCE OF HEALTH BENEFITS
Employers must maintain health-care coverage for employees on VESSA leave at the level and under the conditions the coverage would have been provided had the employee not gone on leave.46 If an employee fails to return from leave, the employer may recover any premiums paid to maintain coverage for the employee and the employee’s family during the period of leave unless the employee’s failure to return to work is due to: (1) the continuation, recurrence, or onset of domestic or sexual violence that entitles the employee to VESSA leave; or (2) other circumstances beyond the control of the employee.47 An employer may require an employee to provide certification that the employee is not able to return to work because of one of these reasons.48
J. REASONABLE ACCOMMODATIONS REQUIRED
Similar to the reasonable accommodation requirement of the ADA, VESSA requires employers to make "reasonable accommodation to the known limitations resulting from circumstances relating to being a victim of domestic or sexual violence or a family or household member being a victim of domestic or sexual violence of an otherwise qualified individual… unless the employer or public agency can demonstrate that the accommodation would impose an undue hardship on the operation of the employer or public agency."49 A "‘reasonable accommodation’ may include an adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure, in response to actual or threatened domestic or sexual violence."50
Similar to the ADA, the VESSA defines a "qualified individual" as an applicant or employee who, but for being a victim of domestic or sexual violence or with a family or household member who is a victim of domestic or sexual violence, can perform the essential functions of the job.51
Likewise, an "undue hardship" is an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the reasonable accommodation needed; (2) the overall financial resources of the employer and of the facility involved; (3) the number of persons employed at such facility and the overall size of the employer’s business; (4) the effect on expenses and resources, or the impact otherwise of such accommodation on the operation of the facility; (5) the type of operation of the employer, including the composition, structure, and functions of the workforce; (6) the geographic separateness of the facility from the employer; and (7) the administrative or fiscal relationship of the facility to the employer.52
K. NOTICE REQUIREMENT
Covered employers must post a notice prepared and approved by the Illinois Department of Labor ("IDOL"), summarizing both the requirements of VESSA and information pertaining to the filing of a charge.53 The notice must be posted in a conspicuous place where notices to employees are customarily posted.54 Employers can access the required workplace posting at the following website: http://www.state.il.us/agency/idol/vessa/vessa.htm.
L. DISCRIMINATION AND RETALIATION PROHIBITED
VESSA also provides that an employer may not discriminate against an individual because: (1) the individual is or is perceived to be a victim of domestic or sexual violence; (2) the individual requested to participate in or participated in/prepared for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the individual or a family or household member of the individual was a victim; (3) the individual requested an accommodation in response to actual or threatened domestic or sexual violence, regardless of whether the request was granted; or (4) the workplace is disrupted or threatened by the action of a person whom the individual states has committed or threatened to commit domestic or sexual violence against the individual or the individual’s family or household member.55
In addition to the general prohibition of retaliation for exercising rights under VESSA,56 VESSA specifically prohibits employers from taking any adverse employment actions against employees who have filed a VESSA charge; who have given information in connection with a VESSA inquiry or proceeding; or who have, or are about to testify in any VESSA inquiry or proceeding.57 Hopefully, these discrimination and retaliation provisions will stop the prevalent employer practice automatically terminating any employee who has been involved in a domestic violence dispute in order to protect their workplaces from the perceived threat of future violence.
Individuals who believe that their VESSA rights have been violated may file a complaint with the IDOL within three years of the alleged violation.58 The IDOL will investigate the complaint, issue a decision stating its findings, and may award the following relief: back pay plus interest; equitable relief such as hiring, reinstatement, promotion and reasonable accommodations; and reasonable attorney’s fees and costs.59 As written, VESSA does not authorize private civil actions for any alleged violations.
IV. RECOMMENDATIONS FOR EMPLOYERS
First, Illinois employers should immediately update their handbook and equal employment opportunity ("EEO") policies to affirmatively state that the employer does not discriminate against victims of domestic or sexual violence. Employers should also adopt policies regarding requests for leave and for reasonable accommodations under VESSA. These policies can be modeled after the employer’s FMLA and ADA policies.
Second, employers should train management, human resources, and other personnel likely to receive requests for leave or reasonable accommodations on VESSA’s requirements and the specific provisions of the company’s policies. Finally, employers must post the required notice regarding VESSA rights.
Illinois’ VESSA provides unpaid leave and protection from discrimination and retaliation for survivors of domestic and sexual violence and their families. Therefore, VESSA makes it more likely that employees can deal with the violence and stay at, or return to, work. If employees know they cannot be fired for disclosing that they are victims of domestic or sexual violence, they are more likely to speak with their employers about it, allowing them to work together to develop safety plans and other steps to keep the workplace safe and the employee working. Therefore, VESSA will not only help survivors of domestic violence and sexual assault, it will also support Illinois employers and workplaces.
2 Pub. Act. 93-0591.
3 These laws can be found, respectively, at Cal. Lab. Code §§230, 230.1 (effective 2002, updated in 2003); C.R.S.A. §24-34-402.7 (effective 2002, updated 2003); 2003 HI S.B. 931 (enacted in 2003, effective Jan. 1, 2004); 26 M.R.S.A. §850 (effective 2002, amended 2003); R.I. Gen. Laws §12-28-10 (effective 1986).
4 NYC Admin. Code 8-107.1(2) (effective 2001) and Ord. No. 99-05 §1 (effective 1999), respectively.
5 The following states each have pending domestic violence laws: Arizona- S.B. 1552, 45th Leg., 1st reg. session (passed the Senate on March 20, 2001); Delaware- H.B. 276, 141st Gen. Assembly (in the House Appropriations Committee since June 2001); Kentucky- H.B. 171 (the bill was passed unanimously on February 24, 2003); Massachusetts- H.B. 3030, 182nd Gen. Ct. reg. sess. (in committee since 2001); Mississippi- H.B. 739, Reg. Sess. 2002 (the bill died in committee); New York- an additional bill, A.B. 31/S.B. 4646, 225th Ann. Leg. Sess. (referred to the Labor Committee in March 2003), H.B. 375 & S.B. 235, 186TH Gen. Ass. (passed the House unanimously on February 7, 2001); Pennsylvania- H.B. 713 & H.B. 315, 102nd Gen. Ass. (both bills are in committee); Tennessee, and Washington - S.B. 5329, 57th Leg. Wash. 2001 (passed the Senate in 2002).
6 See PATRICIA TJADEN & NANCY THOENNES, NAT"L INST. OF JUSTICE & CTRS. FOR DISEASE CONTROL & PREVENTION, EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE 9 (2000).
7 Intimate Partner Fact Sheet. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control. Accessed November 12, 2003, at http://www.cdc.gov/ncipc/factsheets/ipvfacts.htm.
8 Blume LT, Friedman LN, et al. Current Concepts in Women’s Health: Domestic Violence and Primary Care. Massachusetts Medical Society, 1992.
9 Domestic violence statstics, shelter against violent environments. Accessed November 17, 2003, at http://www.save-dv.org/stats.htm.
10 Jody Raphael & Richard M. Tolman, Trapped in Poverty, Trapped by Abuse: New Evidence Documenting the Relationship Between Domestic Violence and Welfare (1997).
11 DV information and facts, new eginnings Center (citing Zorza, "Woman Battering: A Major Cause of Homelessness," Clearinghouse Review, 1991). Accessed on November 18, 2003, at http://newbeginningcenter.org/dvinfo/facts.asp.
12 Family Violence Prevention Fund, news Release. Accessed on November 17, 2003, at http://endabuse.org/press/releases.php3?Search=Article&ID=12.
13 See endnotes 10-12.
14 See endnote 19.
15 American Institute on Domestic Violence. Accessed on November 17, 2003, at http://www.aidv-usa.com/Statistics.com.
17 U.S. Gen. Acct. Office, Domestic Violence Prevalence and Implications for Employment Among Welfare Recipients 19 (Nov. 1998) (summarizing the results of 3 studies).
18 S. REP. NO. 138, 103rd Cong., 2d Sess. 54, n. 69 citing E. Ellis, B. Atkeson and K. Calhoun, An Assessment of the Long Term Reaction to Rape, 50 J. Abnormal Psychology No. 3, 264 (1981).
19 Patricia Tjaden & Nancy Thoennes, Nat’l Inst. of Just. & Ctrs. for Disease Control and Prevention, Stalking in America: Findings From the National Violence Against Women Survey 11 (April 1998).
20 See Richard M. Tolman & Jody Raphael, A Review of Research on Welfare and Domestic Violence, 56 J. SOC. ISSUES, 655, 661-62 (2000).
21 Id. at 664-67.
22 Sec. 15(3).
23 Sec. 10(10) & (15).
24 Sec. 10(9).
25 Sec. 20(a).
26 Sec. 20(a)(2).
27 Sec. 20(a)(3).
28 Sec. 25.
29 Sec. 20(a)(2).
30 Sec. 10(12).
31 Sec. 10(13).
32 Sec. 10(5).
33 Sec. 10(6), (20) & (21).
34 720 Ill. Comp. Stat. § 5/12-7.3(a).
35 Sec. 20(c)(1).
36 Sec. 20(c)(1)(B).
37 Sec. 20(b).
39 Sec. 20(c)(2).
40 Sec. 20(e)(1)(D).
41 Sec. 20(d).
42 Sec. 20(e)(1).
43 Sec. 20(e)(1)(B).
44 Sec. 20(e)(1)(C).
45 Kohl’s v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799 (7th Cir. 2001) (no violation of FMLA where employer discovered disciplinary violation while employee on leave and terminated employee for that disciplinary violation).
46 Sec. 20(e)(2)(A).
47 Sec. 20(e)(2)(B).
48 Sec. 20(e)(2)(C).
49 Sec. 30(b)(1).
50 Sec. 30(b)(3).
51 Sec. 30(b)(2).
52 Sec. 30(b)(4).
53 Sec. 40.
55 Sec. 30(a).
56 Sec. 20(f )(1).
57 Sec. 20(f)(2).
58 Sec. 35(a)(1).
59 Sec. 35(a)(1).
Emily M. Shaules is an EEO Investigator for the United States Postal Service in Chicago. Ms. Shaules gradated in 2001 from Northwestern University School of Law and has served on the board of the Chicago chapter of the National Organization for Women.