United States: Newark Issues FAQs On Paid Sick Time Ordinance; Employers Need To Prepare Notice To Employees By June 21, 2014 Effective Date

As we previously posted here and here, Newark, New Jersey, enacted a paid sick time ordinance on January 29, 2014. According to the City of Newark's new webpage covering the ordinance, it is set to take effect on June 21, 2014. The website also provides additional information about employers' notice obligations under the ordinance.

As a reminder, the ordinance provides for one hour of paid sick time for every thirty hours worked for employees who have worked at least eighty hours in the City of Newark in a calendar year, regardless of whether or not the employer maintains a location in the City. Small employers (with fewer than ten employees) must provide covered employees up to twenty-four hours of paid sick time per year, except for child care workers, home health care workers, and food service workers, who shall receive up to forty hours per year. Large employers (with ten or more employees) must provide all covered employees with up to forty hours of paid sick time per year. Employees accrue and can use leave regardless of whether they are full-time, part-time or temporary, provided that they meet the eighty-hour minimum.

Paid sick time begins to accrue on the first day of employment (or the June 21 effective date of the ordinance for current employees), but employees cannot use paid sick leave until the 91st day of employment (or 91st day after the effective date of the ordinance). Unused sick time may be carried over to the following year, but employers may pay employees for unused paid sick time at the end of the calendar year instead of permitting employees to carry it over.

An employee may use paid sick time for his or her own mental or physical illness or that of a family member. The ordinance includes within the definition of family member: an employee's child (including adopted children, stepchildren, and children to whom the employee stands in loco parentis), an employee's parent (including foster parents, stepparents, or a person who stood in loco parentis when the employee was a child), a person to whom the employee is legally married or with whom the employee has entered a civil union, an employee's grandparents, an employee's grandchildren, domestic partners, and siblings.

Employers may request that an employee confirm in writing, after the use of paid sick time, that the paid sick time was used for a purpose authorized by the ordinance. Where an employee uses paid sick time for three consecutive days, employers may require additional documentation. However, employers cannot inquire into the nature of the underlying medical condition if employees use leave to care for a family member, unless such information is required under other statutes, such as the Family and Medical Leave Act. Employers may also require reasonable advance notice of the intention to use paid sick time where the need to use leave is "foreseeable," provided that an employer may not require more than seven days' notice. Where the need is not foreseeable, an employer may require an employee to provide notice as soon as practicable.

The ordinance also contains certain record retention requirements, and provides that violations, including with regard to the record retention provisions, may result in a fine.

The ordinance does not apply to employees covered by collective bargaining agreements that are in effect at the time of the effective date of the law. However, when any existing collective bargaining agreement expires, the new one can expressly waive the paid sick time requirements if it does so in "clear and unambiguous terms," according to the City.

Employers must give individual written notice to each covered employee at the commencement of employment, or as soon as practicable if the employee is already employed as of the effective date of the ordinance. The notice must be in English and the primary language of the employee, so long as the primary language of that employee is also the primary language of at least ten percent of the employer's workforce. The notice must include the right to paid sick time, the accrual rate and amount of paid sick time, the terms of its use, the right to be free from retaliation for exercising rights under the law, and the right to a private cause of action for interference or retaliation.

Although it was originally anticipated that the City of Newark Department of Child and Family Well-Being would provide a model notice to employers, it has not yet done so. Rather, the City of Newark's website advises that employers prepare their own written notice that incorporates the key terms of the ordinance.

Employers must also display a poster setting forth employees' rights under the law, which must be in English and any primary language of at least ten percent of the workforce. The City's website includes a set of "frequently asked questions" for employers and employees, which the City claims can be posted in the workplace to satisfy an employer's posting – but not the individual notice – requirement under the ordinance. Because the answers contained in the FAQs frequently refer readers to the text of ordinance itself, instead of answering questions directly, employers should be cautioned about relying only on the FAQs to fulfill the posting obligation. Instead, employer may choose to post both the FAQs and the notice that they create to distribute to covered employees.

The FAQs are also noteworthy in that they clarify that an employer does not need to reinstate the leave bank of an employee who quits (as opposed to being fired) and is rehired within six months.

Given the upcoming June 21 deadline to issue the required notice under the ordinance – and to start keeping track of hours being accrued by covered employees, employers may wish to quickly begin the process of creating and distributing the notice and modifying their leave policies accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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