- Of Counsel
In May of this year, New Jersey joined the growing number of states to enact paid sick leave laws. The New Jersey Paid Sick Leave Act is currently in effect and below you will find certain information that is important for all New Jersey employers to understand.
Who Does it Affect?
The Act applies to New Jersey employers of all sizes, including businesses that are based elsewhere but have employees located in New Jersey. While several New Jersey municipalities already had paid sick leave ordinances, this new state law preempts them, meaning they no longer apply and employers throughout the state are now subject to one consistent set of requirements.
The Act does not apply to a few narrow categories of employees: (1) construction industry employees working under collective bargaining agreements; (2) per diem health care employees; or (3) public employees who are already provided with sick leave with full pay pursuant to any other state law, rule, or regulation.
Employers who already have paid time off and/or paid sick leave policies that comply with the Act’s minimum requirements need not create an additional sick leave policy. But, it is essential to review current paid time off policies as soon as possible to ensure that they do in fact meet the Act’s minimum requirements, and if not, update them as necessary. Contact us if you need assistance to create a paid sick leave policy for your employees, or to review and update your existing policies to ensure they meet all of the Act’s requirements.
What are the Act’s Requirements?
Accrual of Paid Sick Leave. Under the Act, employees will accrue, beginning October 29, 2018, one hour of sick leave for every 30 hours they work. They can use or accrue no more than 40 hours of paid sick leave per benefit year, and can carry forward no more than 40 hours of paid sick leave from one benefit year to the next. Employers can opt to forego the accrual process and allow employees to start each benefit year with the full 40 hours of sick leave.
Using Accrued Sick Leave. Employees are eligible to begin using their accrued paid sick leave 120 days after commencing employment. After that, they can use sick leave as soon as they accrue it. Employees using earned sick leave must be paid at the same rate of pay with the same benefits that they normally earn. Or, the employee can opt, with the employer’s agreement, to work additional hours or shifts to make up for hours or shifts missed while sick, rather than deduct from their accrued sick leave.
Beyond an employee’s own personal sickness, there are a variety of reasons an employee can use paid sick leave under the Act. For example, it can be used to take time off for: medical appointments, including preventive medical care; caring for sick or injured family members; circumstances involving domestic violence; workplace or school closures due to public health emergency; or school meetings or functions relating to an employee’s child.
Employers can require up to seven days’ advance notice when an employee’s need to use sick leave is foreseeable, but can only require employees to provide notice “as soon as practicable” when they unexpectedly need to use paid sick leave.
Employers can, under certain circumstances (and with advance notice to employees), prohibit the use of paid sick leave for foreseeable reasons on certain dates, for example, high-volume periods or special events, during which the use of foreseeable earned sick leave would unduly disrupt the employer’s operations.
Notice Requirements. Employers must “conspicuously post” the notification poster issued by the state Department of Labor & Workplace Development “in a place or places accessible to all employees in each of the employer’s workplaces.” You can download a copy of the notice in English and several other languages from the Department’s website at: https://www.nj.gov/labor/earnedsick/index.html. Employers must post and distribute a copy of this notice to each employee by November 29, 2018, and must subsequently provide copies to new employees upon hire, and any employee who requests one. Under the Department’s proposed rules for the Act, posting the notice on your company’s intranet/internal website, and distributing the notice to employees via e-mail, can satisfy the notice requirements.
Recordkeeping. In general, employers must maintain records of the hours worked by their employees, and earned sick leave used by employees, for a period of five years, and allow the state Department of Labor & Workforce Development to access and review those records on demand.
Anti-Discrimination and Anti-Retaliation. Employers are prohibited from discriminating against employees for using paid sick leave. For example, use of earned sick leave taken in compliance with the Act cannot be counted as an absence that may result in employee discipline, discharge, demotion, suspension, a loss or reduction of pay, or any other adverse action. It is also unlawful to retaliate against employees who allege their employers have violated the Act.
Consequences of Non-Compliance. Penalties for violating the Act can include fines and even jailtime.
For More Information
This alert is intended as a general overview of the Act to update the Firm’s clients; there are many more details contained in the Act and its proposed administrative rules that are not covered here. If you need further details, answers to specific questions, an analysis of your business’s compliance with the Act, or assistance in administering your paid sick leave program, please contact us.
Click Link Here to read important information regarding the Families First Coronavirus Response Act.
In a recent decision (Justin Wild v. Carriage Funeral Holdings, Inc.), the New Jersey Supreme Court determined that an employee who is fired for using medical marijuana outside the workplace may bring a claim for disability discrimination under the New Jersey Law Against Discrimination. Mason, Griffin & Pierson Attorney, Elizabeth Zuckerman, who argued the cause for Amicus Curiae National Employment Lawyers Association of New Jersey, stated the "decision is a win for employees who test positive for marijuana due to their lawful use of medical marijuana outside the workplace."
Jeanne-Marie Scollo has become an Associate with Mason, Griffin & Pierson, P.C. She earned her J.D from Touro College Jacob D. Fuchsberg Law Center. She is a member of the firm's Local Government Law and Litigation Practice Groups. Ms. Scollo brings over nine years of previous legal experience to the firm. She served as Deputy County Counsel for Middlesex County from 2014 to 2019 and was previously a solo practitioner in New Brunswick. Ms. Scollo is admitted in New Jersey and New York and is a member of the New Jersey Institute of Local Government Attorneys, Mercer County, Middlesex County, and New Jersey State Bar Associations.