By: Robert W. Small
New Jersey’s Paid Sick Leave Act takes effect on October 29, 2018. Employers of every size will be require to provide 40 hours of sick leave per “benefit year” to each covered employee.
The term “employee” means any person “engaged in service to an employer…for compensation.” Excluded from the definition are employees in the construction industry if they are covered by a collective bargaining agreement, per diem health care workers and public employees who are covered by other legislation.
Employers must declare a “benefit year” consisting of 12 months. It may be a calendar year or could begin with the employee’s date of employment or any other 12 consecutive month period. Current employees begin to accrue leave on the effective date of the Act; new employees on their first day of employment, but they may not take leave under the Act for 120 days after their start date. Otherwise, sick leave may be used as it accrues. Importantly, employers who already offer paid leave, including sick days, vacation days, personal days, or vacation days can use those days to comply with the Act.
Time is accrued at the rate of 1 hour for every 30 hours worked up to a maximum of 40 paid hours of sick time. Employers may, but are not required to, accrue a greater number of paid leave hours. Employers may determine the increments in which paid sick leave must be used, but the increment cannot be greater than a single shift. Employers do not have to permit a carryover from year to year of unused time. Employers may, but are not obligated to offer to pay employees for unused time in the final month of a benefit year. The employee can elect to take all of the payment or 50% of it and reserve the balance of the accrued and unused leave. The amount of payment is based on the employee’s rate of pay at the time of payment. Employers are not required to pay separated employees for accrued but unused leave but an employee who is rehired within 6 months after termination must have all unused sick leave reinstated.
Leave may be used for the following purposes:
- Time needed for the diagnosis, care or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee;
- To aid or care for a covered family member during diagnosis, care or treatment of, or recovery from, the family member’s mental or physical illness, including preventive care. “Family Member” is broadly defined to include individuals related by blood to the employee or “whose close association with the employee is the equivalent of a family relationship.” The Act specifically includes child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner or civil partner of a parent or grandparent of the employee, or a sibling of any spouse, domestic partner or civil union partner of the employee;
- Circumstances related to an employee or their family member’s status as a victim of domestic or sexual violence, including the need to obtain related medical treatment, seek counseling, relocate or participate in related legal services;
- For the closure of an employee’s workplace or of a school/child care facility because of a public official’s order relating to a public health emergency; and
- Time to attend a meeting requested or required by school staff to discuss a child’s health condition or disability.
If leave is foreseeable, the employer may require notice of up to 7 days and reasonably require employees to schedule leave in a manner that does not unduly disrupt operations. Employers may designate dates that are critical to operations and prohibit use of foreseeable leave on those dates and require documentation if unforeseeable leave is used on those dates. If an employee is out for 3 or more consecutive days the employer may require documentation to establish that leave was for a permitted purpose.
After the Department of Labor creates a Notice form, employers must post it and provide employees with a written copy within 30 days after publication. Employers must retain relevant records for 5 years. To the extent an employer is covered by a local municipality’s sick leave ordinance, this Act pre-empts it.
Employers should act now to draft an appropriate policy, notify employees and put in place procedures for complying with the Act.
If you have any questions, or would like additional information, please contact Bob Small, Partner in Reger Rizzo & Darnall’s Employment Practices Group, at 215.495.6541, or via email at firstname.lastname@example.org.
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