Category: Paid Sick Leave

Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act

David J. Reilly and Vimal K. Shah

This is a summary of the emergency family and medical leave and paid sick leave provisions of the “Families First Coronavirus Response Act” (H.R. 6201), which Congress passed and the President signed on March 18, 2020.  These provisions provide for emergency paid sick leave and for an emergency expansion of benefits under the Family Medical Leave Act (“FMLA”).  The sick leave benefits apply to all employees regardless of length of service, while the expanded family leave provisions apply to employees that have worked for the employer for at least 30 calendar days.

These provisions, entitled the “Emergency Family and Medical Leave Expansion Act” (“EFMLEA”) and the “Emergency Paid Sick Leave Act” (“EPSLA”), respectively, will take effect “not later than 15 days after the enactment” of the Act (i.e., by April 2, 2020), and will expire on December 31, 2020.  Both the EFMLEA and the EPSLA apply to private employers with fewer than 500 employees, and to certain public employers.

The Department of Labor (“DOL”) has been empowered to issue regulations to exclude employers of less than 50 employees from the requirements of these laws if compliance will jeopardize “the viability of the business as a going concern.”  The DOL also is empowered to exclude certain health care providers and emergency responders from these requirements.

Both Acts prohibit discrimination and retaliation against employees invoking their benefits.

A. Employers Covered

Unlike the “standard” FMLA (which covers employers with 50 or more employees), both the EFMLEA and EPSLA cover private employers only with fewer than 500 employees. Like the FMLA, both also cover the following employees of public agencies:

  1. Civilian employees in the Federal military departments;
  2. Certain employees in Federal executive agencies;
  3. Employees in any unit of the Federal judicial branch that has positions in the competitive service;
  4. Employees in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces;
  5. Employees of the Library of Congress or the Government Publishing Office;
  6. Employees of the United States Postal Service or the Postal Regulatory Commission; and
  7. Anyone employed by a State, political subdivision of a State, or an interstate governmental agency, except for individuals who are not subject to the civil service laws of the applicable State, political subdivision, or agency; and:
    a. hold a public elective office of that State, political subdivision, or agency; or
    b. are selected by the office holder to be a member of his/her personal staff; or
    c. are appointed by the officeholder to serve on a policymaking level; or
    d. are an immediate adviser to the officeholder with respect to the constitutional or legal powers of his/her office; or
    e. are employed in the legislative branch or legislative body of that State, political subdivision, or agency and not employed by the legislative library of such State, political subdivision, or agency.

Although the definition of covered employers for both Acts is the same, there are differences in employee eligibility, as discussed below.

B. Emergency Family and Medical Leave Expansion Act

Eligible Employees:  The EFMLEA covers employees who have been employed for at least 30 calendar days.  This differs from the “standard” FMLA, which only covers employees who have been employed for at least a year and have worked 1,250 hours.  Health care providers and emergency responders may be excluded by their employers from the expanded family and medical leave provisions of the EFMLEA.

Reason for Leave:  The EFMLEA temporarily amends the FMLA to provide for leave based upon a “qualifying need related to a public health emergency,” which means the employee is unable to work (or telework) due to a need to care for a son or daughter under age 18 if the child’s school or place of care has been closed, or the child’s child care provider is unavailable, due to a public health emergency.  This leave entitlement is limited to the period beginning on the date the EFMLEA takes effect (“not later than 15 days after the date of enactment of this Act”, i.e., April 2, 2020) and ending on December 31, 2020.

Amount of Leave:  Employees eligible for EFMLEA leave may take up to the maximum twelve weeks of protected leave provided for by the FMLA.  However, the EFMLEA additionally requires covered employers to provide paid leave once the leave exceeds ten days.  The first ten days may be unpaid, although an employee may elect to substitute any accrued vacation, personal leave, or medical or sick leave for the unpaid leave.  The EPSLA, discussed below, requires covered employers to provide up to two weeks of paid sick time for eligible employees, including employees who have taken EFMLEA leave.

After ten days, the employer must provide paid leave calculated in an amount based on (1) at least two thirds of the employee’s “regular rate of pay” (as determined under the Fair Labor Standards Act); and (2) the number of hours the employee normally would have been scheduled to work.  (Special rules apply for employees whose schedules vary from week-to-week).  However, the paid leave under the EFMLEA is subject to a daily cap of $200, and the maximum dollar amount of paid EFMLEA leave an employer is required to pay is $10,000 per employee.

It is important to note that because the EFMLEA amends the FMLA to add a new qualifying reason for FMLA leave, an employee who already has used all or part of his/her FMLA leave will not be eligible for a full 12 weeks of leave under the EFMLEA. Similarly, an employee who exhausts his/her FMLA leave for EFMLEA purposes will not be eligible for another FMLA leave within the same twelve-month period.    

Employee Notice Required:  Where the need for EFMLEA leave is foreseeable, the employee must provide the employer “with such notice as is practicable.”

Restoration to PositionThe FMLA’s requirements concerning maintenance of benefits during protected leave, and restoration to the same or equivalent position upon return from leave, generally apply to EFMLEA leaves. 

However, the restoration requirements do not apply to employers with less than 25 employees where certain conditions are met, including that the employee’s position no longer exists as a result of conditions “caused by a public health emergency during the leave,” the employer has made “reasonable efforts” to restore the employee to an equivalent position, and the employer has made “reasonable efforts” to contact the employee if an equivalent position becomes available during the one-year period following the earlier of (1) the date on which the need for EFMLEA concluded; or (2) twelve weeks after the employee’s EFMLEA leave began.

C. Emergency Paid Sick Leave Act

 Eligible EmployeesAll employees of employers covered by the EPSLA are eligible regardless of how long they have been employed.

Reasons for Paid Sick Time:

Covered employers are required to provide up to two weeks of paid sick time to employees who are unable to work (or telework) due to one of the following COVID-19 related reasons:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or is caring for an individual who is subject to such an order.
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, or is caring for an individual who has been advised to self-quarantine.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for his/her child if the school or place of care for the child has been closed, or the child’s childcare provider is unavailable, due to COVID-19 precautions.
  5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.

Duration and Amount of Paid Sick Time:  Employees of covered employers are eligible for up to two weeks of paid sick time under the EPSLA.  Full time employees are eligible for up to 80 hours of pay at their regular rate of pay, while part-time employees are eligible for payments up to the equivalent of the average number of hours they worked over the prior two weeks.

Paid sick time under the EPSLA must be made available for immediate use by the employee, regardless of how long the employee has been employed by the employer.

EPSLA paid sick time is in addition to any paid sick time already available to employees.  Employers may not require employees to use other paid leave provided by the employer before using EPSLA paid sick time.

No carryover of EPSLA paid sick time from one year to the next is permitted.  Nor are employees entitled to any payout of unused EPSLA sick time upon termination of employment for any reason.

The maximum amount of EPSLA paid sick time depends on whether the absence is due to the employee’s own COVID-19 circumstance or is in order to care for someone else, as follows:

  1. Employees who cannot work (or telework) because of their own COVID-19 situation (i.e., those subject to a Federal, State, or local quarantine or isolation order, or advised by a health care provider to self-quarantine due to COVID-19 concerns, or experiencing COVID-19 symptoms and seeking a medical diagnosis), are eligible for EPSLA paid leave at their regular rate of pay, up to a maximum of $511 per day and a $5,110 total cap.
  2. Employees who cannot work (or telework) because they are caring for someone else experiencing a COVID-19-related circumstance (i.e., caring for someonesubject to a Federal, State, or local quarantine or isolation order, or advised by a health care provider to self-quarantine, or caring for his/her child under age 18 or a child over 18 who is incapable of self-care due to a disability if the child’s school or place of care has been closed, or the child care provider is unavailable, due to COVID-19 precautions) are entitled to leave at two-thirds of their regular rate of pay, up to a maximum of $200 per day with a $2,000 total cap.
  3. Employees who experience “any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor” also may be entitled to leave at two-thirds of their regular rate of pay, up to a maximum of $200 per day with a $2,000 total cap.

Required PostingsEmployers will be required to post notices of the EPSLA’s requirements using a model notice prepared or approved by the DOL.

D. Multi-Employer Collective Bargaining Agreements

Employers who are parties to multi-employer collective bargaining agreements may fulfill their paid leave obligations under both the EFMLEA and the EPSLA with contributions, based on the paid leave or sick time each employee is entitled to under the statutes, to a multi-employer plan, benefit, program or fund that allows employees to receive payment based on the hours they have worked and the uses specified under the statutes.

E. Tax Credits

In order to provide financial assistance to employers, the Families First Coronavirus Response Act allows employers to recover their EFMLEA and EPSLA leave payments through payroll tax credits. Employers can receive credits equal to 100% of the qualified EPSLA payments, and up to $200 per day and $10,000 per employee for amount of paid EFMLEA leave benefits. This was confirmed on Friday, March 20, 2020 by the IRS and Treasury Department, which announced that employers will be able to recover their leave payments “dollar-for-dollar.”

Please do not hesitate to contact us should you have any questions.

The New Jersey Paid Sick Leave Act

Dayne R. Johnson

Add New Jersey to the growing ranks of states that have adopted laws guaranteeing paid sick leave to employees. On May 2, 2018, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, requiring paid sick leave for full and part-time employees in New Jersey. Every New Jersey employer (except for certain public employers), regardless of the size of the business, must comply with the Paid Sick Leave Act by October 29, 2018. The Paid Sick Leave Act excludes from eligibility employees in the construction industry who work under a collective bargaining agreement, certain employees covered by a collective bargaining agreement in effect as of October 29, 2018 until the agreement’s expiration, certain per diem health care employees, and public employees provided sick leave with full pay under any other state law.

At a minimum, employers must provide workers with one hour of paid sick leave for every thirty hours worked. Paid sick leave can be capped at forty hours per year. Employees may use sick leave beginning on the 120th calendar day after the employee commences employment, unless the employer agrees to an earlier date. Afterwards, employees may use sick leave as soon as it is accrued. An employer is not permitted to require that the employee find a replacement to cover the hours during which the employee is absent. Furthermore, the Paid Sick Leave Act requires businesses to pay employees for earned sick leave time at their regular rate of pay.

Employers are not required to allow employees to use more than forty hours of sick leave in one calendar year and are not required to carry over more than forty hours for an employee from a prior calendar year. Employers may offer employees a payout of unused but accrued sick leave in the final month of the employee’s benefit year. Thereafter, employees must choose within 10 calendar days whether to accept or reject the employers’ offer, or alternatively, accept a partial payout for 50 percent of the amount of unused sick leave and carry-over the rest, so long as employees do not carry-over more than 40 hours. The Paid Sick Leave Act does not require employers to compensate employees for unused sick time upon termination of employment; however, if an employee is rehired after a separation of six months or less, that employee’s previously accrued sick leave must be reinstated.

Leave can be taken for the employee’s illness or medical care, as well as for certain other designated purposes.  Specifically, paid sick leave can be used for the following reasons:

  • Diagnosis, care or treatment of—or recovery from—an employee’s own mental or physical illness, including preventive medical care;
  • 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 medical care;
  • Circumstances related to an employee’s 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);
  • Closure of an employee’s workplace or of a school/childcare of an employee’s child because of a public official’s order relating to a public health emergency;
  • Time to attend a meeting requested or required by school staff to discuss a child’s health condition or disability.

The Paid Sick Leave Act requires that employers provide notice to employees. The required notice includes both (1) the provision of written notice upon commencement of employment and (2) the conspicuous display of a poster within the workplace, both of which must provide notice of the rights available to the employee under the law.

An employer may require up to seven days advance notice of the employee’s intent to use paid sick leave where the need for leave is foreseeable, as well as reasonable documentation that the leave is being used for a permissible purpose when the leave taken exceeds three or more days. The Paid Sick Leave Act provides a safe haven for employers who offer any other type of paid leave that may be used for the purposes enumerated by the Act, and which accrues at the same or greater rate. Any paid leave meeting these requirements would be deemed compliant with the law.

An employer violates the Paid Sick Leave Act by denying paid sick leave or by retaliating against employees who attempt to exercise rights protected by the law. Notably, the Paid Sick Leave Act contains a broad anti-retaliation provision that creates a presumption of an unlawful retaliatory personnel action whenever an employee suffers an adverse employment action within 90 days of filing a complaint with the Department of Labor, informs any person of an employer’s violation of this law, or opposes any policy, practice or act of the employer that the employee has a good faith belief is in violation of this law. An employer’s failure to comply with the Paid Sick Leave Act would be considered a violation of the New Jersey State Wage and Hour Law and subject to the remedies, penalties, and other measures provided by that law in addition to civil actions.

 

National Survey of Paid Sick Leave Laws

Melanie D. Lipomanis

The following is a summary of new paid sick leave laws enacted within the last few years across the United States: 

  • San Francisco: Effective Date Feb. 5, 2007

Under the San Francisco Paid Sick Leave Ordinance employees begin to accrue sick leave ninety calendar days from their date of hire.  All employers are subject to the ordinance for employees who perform work within San Francisco city limits.  All employees accrue paid sick in one hour increments for every thirty hours worked, including temporary and part-time employees and without regard to immigration status.  Accrual of paid sick leave is capped at 40 hours for employees of businesses with fewer than ten employees, and 72 hours for those with ten or more.

  • Washington, D.C.: Effective May 13, 2008

The Accrued Sick and Safe Leave Act of 2008 (“ASSLA”), requires all employers to provide each employee with paid sick and/or safe leave as follows:  employers with 100 or more employees must provide at least 1 hour of paid leave for every 37 hours worked, not to exceed 7 days of leave per year;  employers with 25 to 99 employees must provide at least 1 hour of paid leave for every 43 hours worked, not to exceed 5 days of leave per year; and employers with 24 or less employees must provide each employee at least 1 hour of paid leave for every 87 hours worked, not to exceed 3 days of leave per year.  Paid leave begins to accrue at the start of employment and may be used after 90 days of employment.  Leave may be taken for the following situations: (1) physical or mental illness, injury, or medical condition of the employee; (2) to obtain a medical diagnosis or preventative care for the employee; (3) situations arising under (1) and/or (2) for a child, parent, spouse, domestic partner, or other family member of the employee; or (4) to obtain social or legal services pertaining to stalking, domestic violence, or sexual abuse of the employee or employee’s family member.  The law contains an exception (“safe harbor”) that employers with existing paid leave policies will be deemed to be compliant with the new law if the polices permit employees to accrue and use paid leave that are at least equivalent to the leave prescribed in ASSLA.

  • Connecticut: Effective Jan. 1, 2012

Under the Paid Sick Leave Act Employers with 50 or more employees must pay “service workers” one hour for every 40 hours worked provided the service worker has worked an average of 10 or more hours a week for the employer in the most recent complete calendar quarter.  “Service worker” encompasses numerous occupations within various service industries (see the Act for all occupations and categories at http://www.ctdol.state.ct.us/wgwkstnd/SickLeaveLaw.htm).  The Act does not apply to day or temporary workers, non-hourly employees or salaried employees.  Paid leave hours begin to accrue on the employee’s date of hire and may be taken upon completion of the 680th hour of employment.  Accrual is capped at 40 hours in any given year.  Leave may be taken for the illness, injury or health condition, or the medical diagnosis, care or treatment of mental illness or physical illness, injury or health condition, or preventative medical care for a service worker or the service worker’s child or spouse, or where a service worker is a victim of family violence or sexual assault, for medical care or psychological or other counseling for physical or psychological injury or disability, or  to obtain services from a victim services organization, (C) to relocate due to such family violence or sexual assault, or to participate in any civil or criminal proceedings related to or resulting from such family violence or sexual assault.  The Act contains a safe harbor provision.

  • Seattle:      Effective Sept. 1, 2012 

Under Seattle’s Paid Sick and Safe Time Ordinance (“PSST”), requires private sector employers to provide all employees working within Seattle city limits with paid sick and/or safe leave as follows:  businesses with more than 4-49 employees must provide one hour of paid leave for every 40 hours worked, with a carryover and capped use rate of 40 hours taken per calendar year; employers with 50-249 employees must provide one hour for every 40 hours worked, with a carryover and capped use rate of 56 hours per calendar year; employers with 250 or more employees must provide one hour for every 30 hours worked, with a carryover and capped use rate of 72 hours per calendar year.  The ordinance applies to all full-time, part-time, temporary, and occasional-basis employees, and employees who telecommute in Seattle.  Leave may be taken for illness or preventative care for the employee or the employee’s family member, or for matters involving domestic violence, sexual assault, stalking, or for closure of the employee’s workplace or the school or place of care of the employee’s child by public official to limit exposure to infectious agent, biological toxin or hazardous material. The ordinance contains a safe harbor provision.

  • Portland, Ore.: Effective Jan. 1, 2014 

The Portland Protected Sick Time Ordinance requires employers with 6 or more employees to provide one hour of paid leave for every 30 hours worked, and employers with fewer than 5 employees to provide one hour of unpaid leave for every 30 hours worked.  The ordinance applies to all employees who work within the geographic boundaries of the city of Portland for 240 hours or more in a calendar year.   The sick leave may be used for issues related to the employee’s own health, to care for the health of a family member, or to address issues caused by domestic violence, sexual harassment, assault or stalking.  Sick time may be used in increments of one hour or greater. The ordinance contains a safe harbor provision.

  • Jersey City, N.J.: Effective Jan. 24, 2014 

The ordinance requires employers with more than ten employees that operate within Jersey City to provide paid sick leave to all employees employed in Jersey City, regardless of full-time or part-time status. Employees of businesses with less than ten employees also must be permitted to accrue sick leave, but such leave may be unpaid.  In addition, the ordinance provides that an employer cannot retaliate against an employee for taking sick leave, reporting a violation of the ordinance or engaging in other activities protected under the ordinance. 

  • New York City: Effective April 1, 2014

New York City employers with five or more employees must provide up to 40 hours per year of paid sick time to employees, which may be used for the employee’s own illness or to care for a sick family member.  The law has a broad definition of “family member.”  For employers with fewer than five employees, the sick leave may be unpaid. 

  • Newark, N.J.: Extended effective date June 21, 2014

All employers regardless of size must provide one hour of paid sick leave for every thirty hours worked.  For those businesses that employ nine or fewer employees in Newark may cap accrual of sick leave to 24 hours per year; employers with ten or more employees may cap paid sick leave to 40 hours per year.  The sick leave may be used for issues related to the employee’s own health, to care for the health of a family member.

  • State Paid Sick Leave Preemption Laws

In response to the piecemeal trend in paid sick leave laws, some state legislatures have enacted preemption laws that prohibit local governments from passing paid sick leave legislation, including Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina and Tennessee. Wisconsin enacted legislation in 2011 that bars cities, villages and counties from enacting family and medical leave rules that differ from state standards, which effectively eliminated Milwaukee’s paid sick ordinance.

Is Mandatory Paid Sick Leave Going State-Wide?

Melanie D. Lipomanis

We recently posted concerning new ordinances enacted in two New Jersey cities, Newark and Jersey City, mandating that local employers provide paid sick time to their employees.  Now, the State Legislature is considering whether to extend mandatory paid sick time statewide.   

Senator Loretta Weinberg (D-Teaneck) and Assemblywoman Pamela Lampitt (D-Voorhees) announced their sponsorship of identical bills (S785/A2354) mandating that public and private employers provide employees with a minimum of paid sick leave.  The bills would allow employees to accrue one hour of paid sick leave for every 30 hours worked, irrespective of whether they are employed on a full or part-time basis. 

More generous than Newark’s paid sick leave ordinance, the pending bills would increase the annual accrual cap to forty hours per year for employers with nine or fewer employees, and seventy-two hours per year for employers with ten or more employees (as opposed to twenty-four and forty, respectively).  Although the bills include an annual rollover provision for accrual purposes, they do not require the employer to provide a greater number of paid sick hours than the specified caps in any given year.  Neither bill provides for payout of accrued but unused sick leave upon separation of employment. 

If either bill is enacted, existing employees would accrue paid sick leave retroactively beginning on January 1, 2014, and new employees will begin to accrue paid leave on the 90th day following their date of hire.  

The bills also provide that the paid sick leave may be taken by the employee for the diagnosis, care, treatment, or recovery from the employee’s own physical or mental illness or injury or other adverse health condition, and for preventative care, or to aid or care for a family member during the diagnosis, care, treatment, or recovery from a mental or physical illness of injury or other adverse health condition, and for preventative care. 

Paid sick leave also could be taken for medical attention, counseling, relocation or legal services in connection with domestic violence concerning either the employee or his or her family member.  The bills also would allow employees to use the paid sick leave for hours the employee is not able to work due to closure of his or her workplace or the school or place of care of a child. 

An employer could require up to seven days advance notice of the employee’s intent to use paid sick leave where feasible, as well as reasonable documentation that the leave is being used for a permissible purpose when the leave taken exceeds three or more days. 

The legislation provides a safe haven for employers who offer any other type of paid leave that may be used for the purposes enumerated, and which accrues at the same or greater rate.  Any paid leave meeting these requirements would be deemed compliant with the proposed law. 

Notably, the bills contain a broad anti-retaliation provision that would create a presumption of an unlawful retaliatory personnel action whenever an employee suffers an adverse employment action within 90 days of filing a complaint with the Department of Labor, informs any person of an employer’s violation of this law, or opposes any policy, practice or act of the employer that the employee has a good faith belief is in violation of this law. 

 An employer’s failure to comply with the proposed law would be considered a violation of the New Jersey State Wage and Hour Law and subject to the remedies, penalties, and other measures provided by that law in addition to civil actions. 

Even if these bills are not enacted, the press reports that State union leaders have vowed to continue their efforts in getting paid sick time laws, such as those in Jersey City and Newark, enacted in other New Jersey municipalities. 

[Press report]

Newark Adopts Paid Sick Leave Ordinance

Harrison J. McAvoy

Add Newark to the growing ranks of jurisdictions that have adopted laws guaranteeing paid sick leave to employees.  On January 29, 2014, Mayor Luis A. Quintana signed Ordinance 13-2010 into law, making New Jersey’s largest city the second municipality in the state to adopt a paid sick leave ordinance.  We previously reported on Jersey City’s adoption of a paid sick leave law here, as well as New York City’s.  Private employers located in Newark must comply with the paid sick leave ordinance by May 29, 2014.

Newark’s ordinance requires that all businesses that employ workers within city limits provide paid sick leave, regardless of the size of the business.  At a minimum, employers must provide workers (i.e., employees who have worked in Newark at least 80 hours in a year) with one hour of paid sick leave for every thirty hours worked.  For those businesses that employ at least ten employees in the city, paid sick leave can be capped at forty hours per year.  Businesses that employ less than ten employees in Newark need not permit employees to accrue more than twenty-four hours of paid sick leave.  Leave can be taken for the employee’s illness or medical care, as well as the illness or care of the employee’s family.  An employer violates the ordinance by denying paid sick leave or by retaliating against employees who attempt to exercise rights protected by the ordinance.

For unionized employees who are covered by a collective bargaining agreement in effect as of the effective date of the ordinance, the ordinance does not become effective until after the termination of the current collective bargaining agreement.    The ordinance also provides (unlike the Jersey City ordinance) that some or all of the ordinance’s requirements may be expressly waived by a collective bargaining agreement, so long as the waiver is expressed “in clear and unambiguous terms.”

Similar to other leave statutes and regulations, the Newark ordinance requires that employers provide notice to employees.  The required notice includes both (1) the provision of written notice upon commencement of employment and (2) the conspicuous display of a poster within the workplace, both of which must provide notice of the rights available to the employee under the law.

The law empowers both employees and the city’s Department of Child and Family Well-Being with the ability to file suit in municipal court for a violation.  Violators may face both fines and damages in the form of restitution of withheld paid sick time.

Amended New York City Paid Sick Leave Law Goes into Effect April 1, 2014

Melanie D. Lipomanis

The New York City Council has passed a resolution implementing Mayor Bill de Blasio’s proposed amendments to the City’s sick leave law.  These amendments extend the law’s coverage to private sector businesses with five (5) or more employees (or one or more domestic workers).  Effective April 1, 2014, such employers will be required to provide up to 40 hours per year of paid sick time to employees, which may be used for the employee’s own illness or to care for a sick family member.  For employers with fewer than five employees, the sick leave may be unpaid.

For employees covered by a collective bargaining agreement on the date the law goes into effect, the law’s provisions do not become effective until the expiration of the agreement.

The amendments also expand the definition of “family member” to include an employee’s child, spouse, domestic partner, parent, sibling (including half-siblings, step-siblings and siblings related through adoption), grandchild or grandparent, or the child or parent of an employee’s spouse or domestic partner.

Employers will be required to maintain written records documenting their compliance with the law for three years.  The statute of limitations for violations of the law will increase from 270 days to two years from the date that the employee knew or should have known of the alleged violation.  Although the law does not provide employees with a private right of action, the City may impose fines and penalties, and award equitable relief and unpaid wages, for violations.

Employers have until May 1, 2014 to provide current and new employees with written notice of their rights under the law.

Jersey City Adopts Paid Sick Leave Ordinance

David J. Reilly and Harrison J. McAvoy

Jersey City is now among a growing number of cities that have adopted laws requiring employers to provide paid sick leave to employees.  Jersey City’s ordinance became effective on January 24, 2014.

The ordinance requires employers with more than ten employees that operate within Jersey City to provide paid sick leave to all employees employed in Jersey City, regardless of full-time or part-time status. Employees of businesses with less than ten employees also must be permitted to accrue sick leave, but such leave may be unpaid.  In addition, the ordinance provides that an employer cannot retaliate against an employee for taking sick leave, reporting a violation of the ordinance or engaging in other activities protected under the ordinance.

The ordinance creates a number of compliance issues for Jersey City employers.  Internal rules for accruing sick leave must satisfy some minimum requirements.  For instance, employees must accumulate sick leave at a rate of at least one hour of leave for every thirty hours worked.  Sick leave may be taken for both the employee’s own illness or to care for a family member (the ordinance contains a broad definition of “family member” that extends beyond the nuclear family).  In addition, employers must retain records pertaining to sick time taken by employees for three years.

Employers are not required to allow employees to use more than forty hours of sick leave in one calendar year and are not required to carry over more than forty hours for an employee from a prior calendar year.  The ordinance does not require employers to compensate employees for unused sick time upon termination of employment; however, if an employee is rehired after a separation of six months or less, that employee’s previously accrued sick leave must be reinstated.

The ordinance does contain some safeguards against employee abuse of sick leave.  For example, after three consecutive days of leave, an employer may require the employee to provide documentation from a health care professional stating that the time off is necessary.  However, an employer is prohibited from requiring that the documentation explain the nature of the illness.

An employer may satisfy the ordinance’s leave requirement through a pre-existing paid time off (“PTO”) leave policy which both permits taking leave for the purposes set forth in the ordinance and meets the ordinance’s minimum accrual requirements.  Thus, an employer with a compliant pre-existing leave policy need not provide any additional leave under the ordinance.

For unionized employees who are covered by a collective bargaining agreement in effect as of the effective date of the ordinance, the ordinance does not become effective until after the termination of the current collective bargaining agreement.

The ordinance also includes specific notice and posting requirements, violation of which may subject an employer to fines.  Employers must provide written notice of rights under the ordinance to individual employees, and display an informational poster in the workplace.  Both the notice and the poster must conform to certain foreign language requirements.  Forms of posters that satisfy the ordinance’s requirements are available on Jersey City’s website.