New Jersey Becomes 10th State To Pass Paid Sick Leave
Published by Eric A. Welter and Megan M. Carboni on May 30, 2018
New Jersey passes the New Jersey Paid Sick Leave Act. Once effective, employers of all sizes will be required to provide paid sick leave to employees.
On April 12, 2018, the New Jersey Senate voted to pass the New Jersey Sick Leave Act (“Act”), which passed the New Jersey Assembly in March 2018. The Act was signed into law by Governor Phil Murphy on May 2, 2018. The Act expressly preempts all municipal paid sick leave ordinances in order to establish uniform requirements for employers operating in New Jersey. Once effective, the Act would require all private employers to provide up to 40 hours of paid sick leave to employees during an employer designated benefit year. The Act will take effect on October 29, 2018.
The Act covers all businesses operating with employees in New Jersey, and it does not exempt or revise the requirements of smaller employers, unlike other state paid sick leave laws, such as Connecticut, Rhode Island, and Maryland. Further, the majority of employees working in New Jersey are eligible to accrue paid sick leave under the law, including temporary service agency employees. The Act only excludes certain employees in the construction industry operating under a collective bargaining agreement, certain per diem healthcare employees, and public employees who already receive sick leave benefits.
During the benefit year, which is a consecutive 12 month period established by the employer, an employee may accrue up to 40 hours of paid sick leave at a rate of one hour of paid sick leave per every 30 hours worked. In the alternative, employers may choose to “frontload” all 40 hours of paid sick leave per year in order to avoid the extra administrative work of keeping track of accruals. Additionally, employers may use their own paid time off (“PTO”) plans in lieu of an accrual plan or “frontloading” so long as a PTO plan provides equal or greater benefits than would be accrued or granted under the Act. While employees may carryover accrued but unused paid sick leave, an employer is only required to provide 40 hours of paid sick leave in a single benefit year.
Eligible employees may use paid sick leave for the following purposes:
- For the diagnosis, care, treatment or recovery for the employee’s own mental or physical condition, including for preventative care;
- For the diagnosis, care, treatment or recovery for a family member’s mental or physical condition, including for preventative care;
- For certain absences resulting from the employee or a family member’s status as a victim of domestic or sexual violence, including leave for counseling, legal services, or participation in civil or criminal proceedings related to the same;
- For absences due to workplace, school, or childcare closures by order of a public official due to a public health concern; and
- For time to attend school-related or childcare related conferences or activities.
Under the Act, a covered “family member” includes child, grandchild, sibling, spouse, domestic partner, civil union partner, parent or grandparent of employee; the spouse or partner of a parent or grandparent of the employee. If the employee does not have a spouse or partner, the employee may designate any blood relation or individual with whom the employee has a close association equivalent to a family relationship for purposes of taking leave under the Act.
Eligible employees seeking leave under the Act must give an employer advance notice when the need for leave is foreseeable. Additionally, employers may prohibit the foreseeable use of paid sick leave on certain dates. If the need for leave is unforeseeable, employers may require that employees give notice of their intention to use sick leave as soon as practicable. Where an employee is absent for three consecutive days, an employer may request documentation confirming the employee’s use of paid sick leave benefits for a purpose permitted under the Act.
New Jersey employers must post a notice created by the New Jersey Department of Labor and Workforce Development (“NJ DOL”) regarding employee rights under the Act, as well as provide individual notice within 30 days after the NJ DOL issues the notice. Employers must provide the written notice to employees when requesting paid sick leave for the first time. Employers must also document employee hours worked and paid sick leave benefits accrued and used by eligible employees. Employers must maintain records of paid sick leave accrued and used for no less than five years and must make those records available for inspection by the NJ DOL if requested.
Lastly, an aggrieved employee has the private right to seek relief for a wrongful denial of benefits under the Act. This means that affected employers may be liable for any wages owed as well as liquidated damages. Further, the Act prohibits any retaliatory or discriminatory action against an employee because the employee requested or used paid sick leave as permitted under the Act or comparable employer provided paid leave policy.
As the New Jersey Paid Sick Leave Act goes into effect on October 29, 2018, employers should take this time to review current PTO and sick leave policies for compliance under the Act. Employers concerned that current workplace policies are not complaint with the Act should seek counsel prior to the effective date.Topics: Employee Handbooks, Employment Litigation, leaves of absence, Paid Sick Leave, policies, Procedures, Retaliation, Wage and Hour Compliance and Litigation