By Adam Fiss and David Gartenberg

Law360 (April 30, 2020, 5:52 PM EDT )

Adam Fiss

David Gartenberg

While the COVID-19 pandemic is first and foremost a public health crisis, it also profoundly impacts virtually every aspect of society. One perhaps unanticipated effect of the pandemic and the corresponding shelter-in-place and stay-at-home orders is a marked increase in domestic violence worldwide.

COVID-19 and the economic, governmental and psychological reactions to it aggravate many of domestic violence's risk factors. Multiple studies show unemployment and economic hardship at the household level are strongly correlated with increases in abusive behavior. Compounding these economic factors are the widespread stay-at-home orders blanketing much of the globe. While these orders may help slow the spread of COVID-19, the forced confinement to the home increases the odds for an incidence of domestic violence to occur.

Stay-at-home orders also hinder victims' ability to seek help when facing violence. Victims often wait to be alone — such as when a partner leaves to go to work — to get help. Those chances to be alone have now dwindled.

They also have more limited outlets in which to seek help because many courts have temporarily barred in-person hearings — such as to obtain a restraining order — and most domestic violence counseling services are operating on remote bases and facing the same economic crunch as much of the country.

What Actions Can Employers Take?

All of this creates a perfect storm for domestic violence to not only increase in frequency, but also to go unchecked. On top of adjusting to all that the COVID-19 pandemic has thrown at them, what obligations do employers have in light of this increased risk?

The most important thing employers can do is simply be aware of the increased risk of domestic violence, and make sure their employees are likewise kept apprised of any resources employers may provide. For example, many employers maintain employee assistance programs that provide for employees confidential counseling.

Employee assistance programs are likely of utmost importance now and it may be a good time to remind employees of their availability. Depending on the circumstances, some employers may also choose to provide information to local domestic violence support groups or entities that provide assistance to victims of domestic violence that can include financial resources and temporary housing.

To the extent an employer implemented a domestic violence policy, the company should make sure it is fully conversant with what the policy provides, as there is increased likelihood that it will come into play. This may include accommodating domestic violence victims, and a leave of absence for reasons related to domestic violence may be required, even if the employee works remotely.

Along those same lines, many jurisdictions have laws that provide protections to employees who are victims of domestic violence. Some of these laws are designed specifically to help these employees by allowing them, for example, to take protected time off to seek safe housing, obtain treatment for psychological or medical issues, or seek an injunction for protection.

Other laws that provide similar safeguards can be encompassed in a jurisdiction's mandatory sick leave statute. For instance, California's paid sick leave law provides employees with the ability to take time off from work using their sick leave bank for certain activities relating to being a victim of domestic violence such as obtaining medical treatment or going to court.

Similarly, California Labor Code Section 230.1, which applies to employers with 25 or more employees, provides protections to employees who are victims of domestic violence. Currently, at least 23 states and multiple municipalities have specific laws[1] — separate from a mandatory sick leave law — that provide protection to employees who are victims of domestic violence. The laws vary by which employers are covered and what specific rights employees have, but at their base level, all allow an employee to avoid employment-related consequences due to being a victim of domestic violence.

Additionally, employers should be cognizant of the heightened risk of domestic violence presented by the COVID-19 pandemic, and be on the lookout for any signs of violence even where employees are working remotely. If an employee had previously made an employer aware they were a victim of domestic violence, it would be a good idea to check in to make sure they are safe if now working remotely.

Likewise, while employers may have less opportunities to observe visible signs of domestic violence (such as bruises), videoconferences may allow for some limited ability to see these signs. Further, employers should, as always, keep their eyes and ears open to other possible warning signs of domestic violence, many of which may be identified even where a victim is working remotely, include:

• Attendance problems;
  
  
• Changes in job performance, repetition of errors;
  
  
• Unusual quietness and/or reluctance to join informal activities;
  
  
• Depression, eating lunch alone and crying;
  
  
• Sensitivity about discussing home life and/or hints of trouble at home;
  
  
• Possible references to a partner's bad moods, anger, temper or substance abuse;
  
  
• A display of being frightened or anxious; and
  
  
• Lack of concentration.

Finally, employees should be aware that the company takes seriously any reported incidents of domestic violence.

Government Action May Be Imminent to Address Domestic Violence

Employers should also know that additional government action to address the increasing incidence of domestic violence may soon be enacted that could impact their employees. Presently, most of this action is advisory.

For instance, the World Health Organization issued a bulletin[2] on April 7 that highlighted the interplay between COVID-19 and violence against women. Among other recommendations, the bulletin urges governments to include services to address violence against women as essential services exempted from shelter-in-place orders, and to ensure that these services are both accessible despite physical distancing measures, and funded.

The Coronavirus Aid, Relief and Economic Security, or CARES, Act took this advice for funding to heart. It provides $45 million in funding for domestic violence services through the Family Violence Prevention and Services Act, and an additional $2 million for the National Domestic Violence Hotline.

This funding may be increased with future legislation to address COVID-19. A bipartisan group of 41 U.S. senators penned a letter[3] on April 13 to Senate leaders urging that "any future legislation to address the ongoing coronavirus pandemic ... provides funding to support victims and survivors of domestic violence and sexual assault."

The letter goes on to call for hundreds of millions of dollars in additional spending and grants to fund a variety of domestic violence programs. While the contours of new legislation at the federal level remains uncertain, it seems possible that at least some of these funding initiatives will be adopted in a future COVID-19 relief bill.

Additional legislative options — even including a temporary domestic violence leave of absence, similar to the expanded leaves provided by Families First Coronavirus Response Act — could also be on the table either at the federal or state level.

Of course, like almost everything involving COVID-19, uncertainty reigns. Employers should remain cognizant of actions taken at the state and federal level to ensure they are complying with all applicable legal obligations, and, of course, so that employees who may be victims of domestic violence are supported.

Given the various jurisdictional distinctions and potential new legislation governing an employer's obligations — complexities that are only compounded by employees working remotely — employers should contact legal counsel in order to evaluate how to proceed when an employee reports that they are a victim of domestic violence.

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Adam Fiss is a shareholder and co-chairs the workplace violence prevention practice group at Littler Mendelson PC.

David Gartenberg is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Jurisdictions that have enacted specific protections for victims of domestic violence include Arizona; California; Colorado; Connecticut; Delaware; the District of Columbia; Florida, at the statewide level and in Miami-Dade County; Hawaii; Illinois, at the statewide level and in the City of Chicago and Cook County; Kansas; Maine; Maryland; Massachusetts; Michigan; Minnesota, at the statewide level and in the city of Saint Paul; the City of St. Louis, Missouri; Nevada; New Jersey; New Mexico; New York, at the statewide level and in New York City and Westchester County; North Carolina; Oregon; Philadelphia, PA; Rhode Island; Austin, San Antonio, and Dallas, TX; Vermont; and Washington, at the statewide level and in Seattle.

[2] https://apps.who.int/iris/bitstream/handle/10665/331699/WHO-SRH-20.04-eng.pdf.

[3] https://www.ernst.senate.gov/public/_cache/files/e899e13a-b415-45b9-a099-bb36394d7a52/76B673E37BDB48B336800CA110FDC429.final-letter-on-domestic-violence-programs-at-doj.pdf.

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