Update to the Family and Domestic Violence Leave (FDVL) – paid leave entitlement

As of 2023, employees will be able to access paid leave days to deal with situations related to family and domestic violence. This paid leave is set to replace the current unpaid domestic violence leave entitlement. Whilst the intention of this is to result in Australian employees not having to make a choice between earning a wage and protecting the safety of themselves and their families (employment Minister Tony Burke), it also raises some interesting questions for business owners about what this looks like in practice.

Let’s talk about the new entitlement

All employees – full time, part time and casual – will be able to access 10 days of paid FDVL within a 12-month period. Everyone will have access to the same entitlement, and it won’t be prorated for part-time or casual employees. The new leave entitlement is effective from 1 February 2023 (for non-small business employees) and 1 August 2023 (for small business employees).

This entitlement is up front, and it doesn’t accumulate year to year if it is unused. Instead, it renews every year on the employee’s work anniversary.

This FDVL is available to employees that need to do something to deal with the impacts of family and domestic violence, when it is not practical for them to do so during their work hours. For example:

• Attending court hearings
• Making arrangements for safety (such as relocation)
• Attending counselling
• Accessing police services
• Attending appointments related to legal, financial or medical professionals.

Let’s revisit the meaning of family and domestic violence

For the purposes of this leave entitlement, family and domestic violence mean violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household that both:

• Seeks to coerce or control the employee
• Causes them harm or fear.

A close relative is:

• an employee’s:
• Spouse or former spouse
• De facto partner or dormer de factor partner
• Child
• Parent
• Grandparent
• Grandchild
• Sibling
• A child, parent, grandparent, grandchild or sibling of an employee current or former spouse or de facto partner, or
• A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Substantiation requirements

As with any other leave entitlement, it is an employer’s right to request substantiation from an employee related to their taking of leave. Failure to produce substantiation may result in them not being paid for that leave.

Types of evidence that may be useful in the case of FDVL include;

• Documents issued by the police
• Documents issued by a court
• Documents from family violence support services
• Statutory declaration

Although requesting substantiation in ordinary cases sounds reasonable, it comes with additional complications when specifically related to FDVL, which we will discuss in more depth below.

How does it interact with other leave?

With the new entitlement not coming into effect until February or August of 2023 (depending on the size of the business), all employees will continue to have access to the 5 days of unpaid FDVL until they are able to access the paid entitlement.

In relation to other types of leave, such as personal/carers or annual leave, if an employee needs to use their paid FDVL whilst already on another type of leave, they need to notify their employer (following the notice and evidence requirements) so that the employer can deduct the hours from the FDVL balance instead of any other leave balance.

Practicality issues

The ability to provide a level of support to employees suffering in this space is a step in the right direction in terms of work and life balance and mental wellbeing. However, it is not without its challenges to businesses. The below lists some areas of risks for business owners to consider before the introduction of this new leave;

• Asking for substantiation – asking an employee for evidence of their domestic or family violence is likely to be uncomfortable for both you and the employee. This conversation needs to be handled with a careful balance of empathy, confidentiality and discernment. Treating this conversation in any other manner could result in a risk to the employee’s OH&S and, therefore a breach of your employer obligations.
• Employees taking advantage of the new entitlement – it is not farfetched to think that some (hopefully very few) employees may choose to take advantage of this entitlement by using your empathy, trust and good nature as a way to get around substantiating their leave. Keep an eye out for a pattern of use, for example regular days taken off on a Friday, Monday or either side of a public holiday.
• Employee shame around requesting this type of leave – typically, people in this type of situation may be embarrassed or frightened to speak up about their need for FDVL. They may feel that it could be used against them down the track or feel that the conversation won’t be kept confidential. Above all, it may be too painful to discuss with anyone that they don’t feel 100% comfortable with.
• Adverse action – employees that make use of this entitlement that then have performance issues may try to draw a connection between the two and allege that you are using this information to treat them adversely. Although an allegation like this is a stretch, this type of allegation would still take time, effort and resources to defend.

What should you do?

To combat the above risks, we recommend the following;

• Mental Health Leave policy – creating a policy that encapsulates the paid FDVL but calling it a Mental Health Leave Policy may assist in removing the embarrassment and shame surrounding family and domestic violence. To take this one step further, you could remove the need for substantiation, making it even more easily accessible.
• Mental Health First Aid Responders – having Leaders educated in crisis management provides a confidential point of contact for employees to go to when they need someone to talk to. It gives them a safe space, free of judgement, with someone who is best equipped to identify ways to support and assist them.
• Identifying red flags – having the knowledge and ability to recognise signs of family and domestic violence gives you, as a leader, the opportunity to support your employee and help them explore their options. Signs that a person may be experiencing family and domestic violence may include;
  • excessive absence or lateness (especially on Mondays)
  • a sudden or sustained drop in productivity
  • frequent unexplained bruises or injuries
  • wearing concealing clothing, even in warm weather
  • frequent or unusual work breaks, or unusual start and finish times
  • displaying anxiety
  • appearing distracted, depressed or overly jumpy
  • lack of concentration or difficulty making decisions
  • inability to take work-related trips
  • receiving excessive personal calls, texts or visits.
• Create a culture of trust and confidence – building a workplace culture where your employees wholeheartedly trust you and know you have their best interest at heart will encourage employees to have transparent conversations with you. These open conversations will best place you to be able to support them in any capacity they require.

It is evident that employers will need to tread carefully in this space but making this an easier conversation stems from the internal frameworks you establish now. Being proactive rather than reactive in your approach is going to make this far more comfortable for your employees. At HR Gurus, we have developed a policy template for Mental Health Leave that reflects this new entitlement and we are giving you free access simply click here.

If you would like more information please don’t hesitate to reach out.

Written by Head Guru – Madeleine Bray