The New Jersey Paid Sick Leave Act

by admin

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.