If there is one complaint we hear regularly when it comes to state-mandated paid sick leave, it’s that the inconsistency in requirements on a municipal, county, and state level can be extremely frustrating for employers. New Jersey employers know this headache all too well, with a slew of local ordinances in multiple towns, from Bloomfield and East Orange, to Montclair and Morristown, to Passaic and Trenton. While many of the laws call for similar leave rights, there are nuances that can trip up employers. On May 2, 2018, the Governor of New Jersey signed the New Jersey Earned Sick Leave law (NJ ESSL), which requires employers to provide paid sick and safe leave to its employees, on a state level. The new law pre-empts – overrides – the local paid sick and safe leave laws, and creates uniformity than an employer can rely upon.
For an employer that already maintains a paid time off policy, it is possible that policy is currently meeting the new obligations. A review of the existing policy side-by-side with the law will be important to ensure that the policy meets the requirements. If the existing plan is fully paid and includes, for example, personal days, vacation days, and sick days that can be used for the purposes and in the manner required by the law, with at least the same amount of accrual or frontloading, the employer won’t have too much to do to adapt their current policy to meet the law’s requirements.
The law is effective October 29, 2018, and contains the following provisions:
Covered Employers: All employers are covered by the NJ ESLL, including any person, firm, business, educational institution, nonprofit agency, corporation, LLC, or other entity that employs employees in New Jersey, including a temporary help service firm. For a temporary help service firm, earned sick leave accrues on the basis of the total time worked on assignment with the temporary help service firm, not separately for each client firm to which the employee is assigned.
“Employer” does not include a public employer that is required to provide its employees with sick leave with full pay pursuant to any other state law, rule, or regulation.
Employee Eligibility: All employees are eligible for the NJ ESSL, with some exceptions. Employee does not include an employee performing service in the construction industry that is under contract pursuant to a collective bargaining agreement, or a per diem health care employee, or a public employee who is provided with sick leave with full pay pursuant to any other law, rule, or regulation of New Jersey.
While an employee is eligible to accrue sick leave upon hire, an employee cannot use accrued time until the 120th calendar day after the start of employment.
Leave Reasons: An eligible employee can use earned sick and safe time for the following reasons:
- Medical Needs: An employee or family member’s diagnosis, care, or treatment of, or recovery from, mental or physical illness, injury or other adverse health condition, or preventive medical care.
- Domestic or Sexual Violence: Absences necessary due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence, if the leave is for:
- medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence;
- services from a designated domestic violence agency or other victim services organization; psychological or other counseling;
- relocation; or
- legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic or sexual violence.
- Public Health Emergency: Time when an employee cannot work because of a closure of the employee’s workplace, school or place of care of a child, by order of a public official due to an epidemic or other public health emergency, or because a public health authority has issued a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.
- School-Related Needs: Time needed by the employee to attend child’s school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding care provided to the child in connection with the child’s health conditions or disability.
Covered Relationships: A family member includes a child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee, or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship..
Amount of Leave: Employees accrue earned sick and safe leave at a rate of 1 hour for every 30 hours worked. Employees can earn and use up to 40 hours of leave per year. Instead of using an accrual method, an employer can frontload the full amount of earned sick and safe leave that an employee would earn over the course of the year at the beginning of the benefit year.
Carryover: An employee can carry over 40 hours of earned sick and safe leave per year. An employer that frontloads earned sick and safe leave does not have to permit carryover.
Pay in Lieu of Carryover: An employer can offer to pay an employee for unused earned sick leave in the final month of the employer’s benefit year. The employee must choose, no later than 10 calendar days from the date of the offer, whether to accept a payment or decline a payment. If the employee agrees to receive a payment, the employee must choose a payment for the full amount of unused earned sick leave or for 50% of the amount of unused earned sick leave. The payment amount must be based on the same rate of pay that the employee earns at the time of the payment. If the employee declines a payment for unused earned sick leave, or agrees to a payment for 50% of the amount of unused sick leave, the employee can carry forward any unused or unpaid earned sick leave to the next benefit year. If the employee agrees to a payment for the full amount of unused earned sick leave, the employee cannot carry forward any earned sick leave to the proceeding benefit year.
Carryover for Frontloaded Time: If an employer does not use an accrual process for earned sick leave hours and frontloads the time instead, then the employer must provide to the employee a payment for the full amount of unused earned sick leave in the final month of the employer’s benefit year or carry forward any unused sick leave to the next benefit year. The employer can pay the employee the full amount of unused earned sick leave in the final month of a benefit year if the employer forgoes, with respect to that employee, the accrual process for earned sick leave during the next benefit year.
Rate of Pay: The employer must pay the employee for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, except that the pay rate cannot be less than minimum wage.
Increments of Leave: An employer can choose the increments that its employees can use earned sick leave, but the largest increment of earned sick leave that an employee is required to use for each shift for which earned sick leave is used must be the number of hours the employee was scheduled to work during that shift.
Documentation: For earned sick leave of three or more consecutive days, an employer can require reasonable documentation that the leave is being taken for the purpose permitted, as follows:
Health reasons: If the leave is for health reasons, documentation signed by a health care professional who is treating the employee or the family member of the employee indicating the need for the leave and, if possible, number of days of leave, is considered reasonable documentation.
Domestic or Sexual Violence: If the leave is domestic or sexual violence, any of the following are reasonable documentation:
- medical documentation;
- a law enforcement agency record or report; a court order;
- documentation that the perpetrator of the domestic or sexual violence has been convicted of a domestic or sexual violence offense;
- certification from a certified Domestic Violence Specialist or a representative of a designated domestic violence agency or other victim services organization;
- or other documentation or certification provided by a social worker, counselor, member of the clergy, shelter worker, health care professional, attorney, or other professional who has assisted the employee or family member in dealing with the domestic or sexual violence.
Public Health Emergency: If the leave is for a public health emergency, a copy of the order of the public official or the determination by the health authority will be considered reasonable documentation.
Foreseeable Leave: If an employee’s need to use earned sick leave is foreseeable, an employer can require advance notice, not to exceed seven calendar days prior to the date of leave, of the intention to use the leave and its expected duration, and must make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer.
Unforeseeable Leave: If the reason for the leave is not foreseeable, an employer can require an employee to give notice of the intention as soon as practicable, if the employer has notified the employee of this requirement.
Employer Notice: Employers shall provide notification, in a form issued by the commissioner, to employees of their rights under this act, including the amount of earned sick leave to which they are entitled and the terms of its use, and remedies provided by this act to employees if an employer fails to provide the required benefits or retaliates against employees exercising their rights under this act. Each covered employer shall conspicuously post the notification in a place or places accessible to all employees in each of the employer’s workplaces. The employer shall also provide each employee employed by the employer with a written copy of the notification: not later than 30 days after the form of the notification is issued; at the time of the employee’s hiring, if the employee is hired after the issuance; and at any time, when first requested by the employee. The commissioner shall make the notifications available in English, in Spanish, and any other language that the commissioner determines is the first language of a significant number of workers in the State and the employer shall use the notification in English, Spanish or any other language for which the commissioner has provided notifications and which is the first language of a majority of the employer’s workforce.
Approval/Denial of Leave: Employers can prohibit employees from using foreseeable earned sick leave from being used on certain dates, and can require reasonable documentation if sick leave that is not foreseeable is used during those dates.
Substitution of Leave: Upon agreement by the employee and employer, an employee can voluntarily choose to work additional hours or shifts during the same or following pay period, in lieu of hours or shifts missed, but an employee must not be required to work additional hours or shifts or use accrued earned sick leave. An employer cannot require, as a condition of an employee’s using earned sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using earned sick leave.
Job Protection: An employer cannot take retaliatory personnel action or discriminate against an employee because the employee requests or uses earned sick leave either in accordance with this law or the employer’s own earned sick leave policy, or files a complaint alleging the employer’s violation of any provision of this law, or informs any other person of their rights under this law.
An employer cannot count earned sick leave as an absence that can result in the employee being subject to discipline, discharge, demotion, suspension, a loss or reduction of pay, or any other adverse action. There is be a rebuttable presumption of an unlawful retaliatory personnel action if an employer takes adverse action against an employee within 90 days of when that employee: files a complaint with the department or a court alleging a violation of any provision of this section; informs any person about an employer’s alleged violation of this section; cooperates with the department or other persons in the investigation or prosecution of any alleged violation of this section; opposes any policy, practice, or act that is unlawful under this section; or informs any person of his or her rights under this law.
Payment of Leave Upon Termination: Unless an employer policy or collective bargaining agreement provides for the payment of accrued earned sick leave upon termination, resignation, retirement or other separation from employment, an employee is not entitled to payment of unused earned sick leave upon the separation from employment.
Preemption of New Jersey Municipal Ordinance: A county or municipality cannot, after the effective date of this law (October 29, 2018), adopt any ordinance, resolution, law, rule, or regulation regarding earned sick leave. This law preempts all existing ordinances, resolutions, laws, rules, or regulations regarding earned sick leave adopted by counties or municipalities.
Recordkeeping: Employers must retain records documenting hours worked by employees and earned sick leave taken by employees, for a period of five years, and must, upon demand, allow the NJ Department of Labor and Workforce Development access to those records. If an employee makes a claim that the employer has failed to provide earned sick leave and the employer has not maintained or retained adequate records documenting hours worked by the employee and earned sick leave taken by the employee or does not allow the department access to the records, it will be presumed that the employer has failed to provide the earned sick leave, absent clear and convincing evidence otherwise. In addition, the penalties provided by the “New Jersey State Wage and Hour Law,” for violations of the requirements of that law regarding the maintaining and disclosure of records will apply to violations of the requirements of this section.
Existing Company Plans: An employer will be in compliance with this law if the employer offers paid time off, which is fully paid and shall include, but is not limited to personal days, vacation days, and sick days, and may be used for the purposes and in the manner provided by this law, and is accrued at a rate equal to or greater than the rate set forth.
What Employers Must Do Now
New Jersey employers are responsible for compliance with this law as of October 29, 2018. Employers should:
- Update paid leave policies to ensure that the employer offers paid sick and safe leave in accordance with this law’s requirements;
- If an employer is located in a municipality that already requires paid sick and safe leave, ensure that the leave complies with the new law; and
- Train appropriate personnel (Human Resources, Benefits, supervisors, managers etc.) on the law’s requirements and employee’s rights to use paid sick and safe leave.