Sweeping Overhaul to VESSA To Become Law Soon

Victims’ Economic Security and Safety Act

Victims’ Economic Security and Safety Act (VESSA)

On May 27, 2009, the Illinois legislature approved a significant overhaul to the Victims’ Economic Security and Safety Act, also know as VESSA, which requires covered employers to provide leave and other accommodations to employees and their family members who are victims of domestic abuse or sexual violence.  Once signed into law by the Governor, which is expected to be within the next several weeks, VESSA will be significantly broadened, not only increasing the protections offered to eligible employees, but also expanding coverage of the Act to include small private employers.  This article will outline some of the significant amendments of VESSA and will also provide employers with guidance on what to do in response to the new law.

Small Businesses are Now Covered Employers

Perhaps the most significant modification to VESSA is the fact that it expands coverage of the Act to include employers with 15 or more employees.  In the past, VESSA applied to private employers with 50 or more employees, as well as public employers.  As a result, many small employers in Illinois will now be required to comply with VESSA for the first time.

Reasons for VESSA Leave are Expanded

The reasons an eligible employee can take leave under VESSA has also been expanded.  VESSA grants unpaid leave rights when an employee or the employee’s “family or household member” is the victim of domestic or sexual violence.  VESSA leave may be taken for such things as: (1) relocating from the household, (2) seeking medical or psychological care, (3) participating in safety planning to increase the safety of the victim, (4) obtaining victim services, and (5) seeking legal guidance or remedies to ensure the victim’s safety (such as time off for relevant civil and criminal court matters).

However, who constitutes a “family or household member” has been greatly expanded in the new law, thereby broadening the circumstances when an employee can take leave pursuant to VESSA.  Specifically, the new amendments to VESSA expand the definition of a “family or household member” to include “any person who is related by blood or by present or prior marriage, and any other person who shares a relationship through a son or daughter.”  The current definition is limited to the employee’s spouse, parent, son, daughter and any person who jointly resides in the same household.

Length of VESSA Leave Depends on Size of Employer

The unpaid leave entitlement for an eligible employee working at a company employing 50 or more employees remains the same at 12 weeks in any 12-month period.  However, employees working for an employer with between 15 and 49 employees are now entitled to 8 weeks of unpaid leave during any 12-month period.

And, unlike before, employers may not require employees to substitute available paid or unpaid leave for VESSA leave.  Therefore, employees can take their full allotment of unpaid leave under VESSA and then also take any earned paid time off, such as vacation or paid time off.  This is a significant deviation from the old VESSA, as well as the FMLA, where employers can require employees to use accrued paid time during FMLA leave.

Expanded Protections Under VESSA

Similar to the FMLA, VESSA requires than an employee be restored to the same or equivalent position upon their return from VESSA leave.  Employee benefits, pay and terms of employment must also be restored.  In this regard, health care coverage must be provided to the eligible employee while on leave.  The amendments also expressly prohibit retaliation by the employer, as well as discrimination against any employees who either exercise their rights or oppose any acts protected by VESSA.

Additionally, like the Americans with Disabilities Act, VESSA mandates that employers must reasonably accommodate the protected employee unless the employer can prove an undue hardship, taking into account exigent circumstances and any danger facing the employee.  Reasonable accommodations under VESSA now include such things as job restructuring, transfer, reassignment, modified work schedules, implementing safety procedures, as well as providing assistance in documenting domestic or sexual violence that occurs at the workplace or in a work-related setting.

Don’t Forget About the Posting Requirements

As before, every covered employer is required to conspicuously post and maintain documentation summarizing VESSA from the Illinois Department of Labor.  An employer’s failure to provide notice to its employees can now lead to monetary fines.  Once VESSA is signed into law, it is expected that the VESSA poster will be updated to incorporate the recent changes to VESSA and available through the Illinois Department of Labor website.

What Employers Need To Do Now?

Since VESSA has been greatly expanded, and since it will be effective immediately when signed into law by the Governor, covered employers (now, companies with 15 or more employees) are recommended to take the following steps immediately:

  1. Review the new law, as amended, and become familiar with the new law.
  2. Train your managers and supervisors on the new law so that they can be familiar with what to do, and how to respond, when circumstances occur giving rise to VESSA leave.
  3. Review and modify your existing VESSA policies to incorporate the new law.
  4. If you do not have a written VESSA policy (for example, because you were previously not a covered employer), you should have a VESSA policy drafted and distributed to your workforce, as well as incorporated into your employee handbook.
  5. Once the updated VESSA poster has been finalized by the Illinois Department of Labor, you need to post the notice in a conspicuous location at your worksite, along with the other federal and state-mandated labor law posters.

We will provide additional notices and information regarding VESSA if there are any further developments.  In the meantime, if you have any questions regarding how to comply with VESSA, or any other employment-related questions, please contact your Arnstein & Lehr LLP employment law attorney.

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