New Jersey’s Sick Leave Law (the “Law”) takes effect on October 29, 2018. It establishes a uniform, state-wide law that pre-empts all municipal sick leave laws and prohibits the passage of similar, local laws.
Who is Covered? The Law applies to all NJ employees (full and part-time) and any business with NJ-based employees (regardless of size). The only exclusion are construction industry employees covered by a collective bargaining agreement, per diem healthcare workers, and public employees who already receive this benefit.
How is Time Accrued?
Employees accrue one (1) hour of paid sick leave for every thirty (30) hours worked, up to forty (40) hours (five days) in a benefit year. Alternatively, an employer may "frontload" the entire forty (40) hours on the first day of a benefit year (as well as implement a more generous program).
A “benefit year” is any 12 consecutive months designated by the employer. Once established, an employer may only change the “benefit year” by first notifying the NJ DOL.
Sick leave benefits begin to accrue for:
Current employees, who have not already accrued sick leave under an existing policy or law, on October 29, 2018 (the effective date of the Law).
Employees hired after October 29, 2018 on the first date of employment. New employees may be required to wait 120 days after hire before “using” earned sick leave.
Carry Over? Employers must either (a) allow up to 40 hours to carry over from one benefit year to the next or (b) pay employees for that time. It is the employee’s choice which alternative to accept.
Existing Policy? Employers may comply with the Law if they already offer employees paid sick leave or paid time off (“PTO”) that accrues at a rate equal to or greater than one (1) hour of leave per 30 hours worked, and the policy is otherwise consistent with the Law.
“Sick Leave” Uses? Earned sick leave may be used for:
Diagnosis, care or treatment of, recovery from and/or preventative care for an employee's own, or his/her family member’s, mental or physical illness or injury.
Absence due to a public health emergency that caused the closure of the employee’s workplace or the school or childcare facility of the employee’s child, or that requires a member of the employee’s family to seek care.
Absence to obtain medical treatment, legal services or to relocate related to an employee's or his/her family member's status as a victim of domestic or sexual violence.
To attend any school conferences requested or required by school staff to discuss a child's health condition or disability.
“Family members” is broadly defined to include an employee’s child, spouse, domestic partner, civil union partner, parent (including adoptive, foster or step-parent, or legal guardian), sibling (including foster or adoptive siblings), grandparent or grandchild, and the parent, grandparent or sibling of the employee’s spouse, domestic partner or civil union partner. Indeed, an employee may also use their sick leave for the care of a non-related individual whose close association with the employee is the “equivalent” of a family relationship.
What May Employers Do?
Require up to seven (7) days advance notice if an absence is “foreseeable,” and limit the use of “foreseeable” sick leave to certain dates.
Request notice “as soon as practicable” if an absence is “unforeseeable,” and the employee is aware of this requirement.
Request documentation to substantiate sick leave, but only if an employee is absent for 3 or more consecutive days.
Employer Obligations? Employers must:
Notify current employees of their rights under the Law (by posting and distributing a notice) and new employees at the time of hire.
Maintain records of hours worked, and used, earned sick leave for 5 years. (Failure to do so will result in a rebuttable assumption that the employer failed to allow employees to accrue time)
Employers are subject to private claims, and the penalties and remedies contained in the New Jersey Wage and Hour Law, including fines and possible imprisonment.
Recommendations? Employers with NJ-based employees should review and adjust their current paid time off policies to ensure compliance with the New Jersey Sick Leave Law prior to October 29, 2018.