An employee just informed me that they are a crime victim and need time off. What do we have to provide?
Whether you must provide time off depends on the type of crime they experienced and the reason they need to take time off from work.
There are two similar but distinct leaves for certain crime victims: crime victims’ leave and victims of crime or abuse leave. These leaves generally require a specific, serious crime that necessitates the employee attending legal proceedings or obtaining medical treatment.
Crime Victims’ Leave
The first type of leave that may be available is known as “crime victims’ leave.” There are two subsets of “crime victims’ leave” and there is no specified length of time for either.
• The first subset provides time off to attend judicial proceedings if the employee or the employee’s immediate family member, including a registered domestic partner or the partner’s child, was the victim of a violent or serious felony (as defined by the Penal Code), felony theft or embezzlement.
• The second subset provides leave for proceedings involving the victims’ rights. Qualifying “victims” and crimes are different from the first subset. In the second subset, “victims” can be only the employee or their spouse, parent, child, sibling or guardian. The qualifying person must be a victim of a specific crime identified in Labor Code Section 230.5(a)(2).
Various proceedings involving victims’ rights are covered under this second subset, including any delinquency proceeding involving a post-arrest release decision, plea, sentencing, post-conviction release decision; or any other proceeding in which a right of the victim is at issue.
Crime victims’ leave is unpaid; however, employees may use vacation, paid time off (PTO), or other personal leave for either subset. For the first subset, the law expressly allows the employee to use sick leave.
Employers are permitted to request documentation to substantiate the leave. For the first subset, the employee must provide the notice of the hearing. For the second subset, the employee may provide documentation from police, court or medical sources identifying the person as a victim of a qualifying crime.
Victims of Crime or Abuse Leave
Although similar in name to the crime victims’ leave law, leave for “victims of crime or abuse” is a separate and distinct leave that provides unpaid time off for different reasons.
All employers, regardless of size, must allow victims of domestic violence, sexual assault, stalking or a crime that resulted in physical injury, or mental injury and a threat of physical injury (“crime or abuse”), to take time off for related legal proceedings, including, but not limited to, obtaining a temporary or permanent restraining order, or other court-ordered relief to help ensure the health, safety or welfare of the employee or their child.
In addition, employers with 25 or more employees must provide employees who are victims of crime or abuse with time off to seek medical attention for injuries caused by the crime or abuse, to obtain services from a shelter, to obtain psychological counseling or mental health services, and to participate in safety training.
The crime or abuse leave is unpaid; however, employees may use leave under the California Healthy Workplaces, Healthy Families Act (HWHFA), vacation, PTO, or other personal leave.
Employers may request documentation to substantiate the employee’s status as a victim of crime or abuse, including a police report, court order, other relevant evidence from the court demonstrating the employee’s attendance in court, documentation regarding medical treatment, or even self-certification from the employee.
If employees are using HWHFA paid sick leave, employers should exercise caution about requesting documentation.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.