United States: New Brunswick Passes Local Sick Leave Ordinance, While New Jersey Legislature Considers Statewide Paid Leave Bills

As 2015 comes to a close, paid sick leave remains a hot issue in New Jersey. The City of New Brunswick recently became the eleventh municipality in New Jersey to mandate paid sick leave, but will be the first city in the state to specify that leave may be used for purposes related to domestic violence, sexual assault, or stalking. On the state-level, the New Jersey Senate approved a sick leave bill earlier this month which, if implemented in its current form, would preclude additional cities from adopting local sick leave laws.

Some key provisions of the New Brunswick Ordinance include:

  • Private-sector employers with 10 or more employees are required to provide full-time employees with up to 40 hours of paid sick leave in a calendar year. Employers with 10 or more employees are required to provide part-time employees with up to 24 hours of paid sick leave in a calendar year. For purposes of the Ordinance, an employee who averages 35 hours per week of work time is considered to be "full-time" and an employee who averages between 20 hours and 35 hours per week is considered to be "part-time."
  • Private-sector employers with fewer than 10 employees are required to provide employees with up to 24 hours of paid sick leave in a calendar year.
  • The Ordinance does not apply to: (i) individuals who are employed by a governmental entity (including any New Jersey school district or Board of Education); (ii) any person who is a member of a construction union and is covered by a collective bargaining agreement ("CBA") negotiated by that union; (iii) employees covered by a CBA, to the extent that the Ordinance's requirements are expressly waived in the CBA in clear and unambiguous terms; (iv) employees who average less than 20 hours of work per week (regardless of the size of the employer); (v) employers with less than five full-time equivalent employees; (vi) individuals who work from home; (vii) independent contractors; and (viii) per diem or temporary hospital employees (as defined by the Ordinance) .
  • Eligible employees will accrue one hour of sick time for every 35 hours worked in New Brunswick, subject to the caps described above. Exempt employees are deemed to work 40 hours per week for purposes of calculating sick leave accrual, unless their actual work week is less than 40 hours, in which case sick leave accrual is based upon their actual work week.
  • Employees begin to accrue sick leave on the first day of employment, but employers may prohibit the use of accrued sick time until after 120 calendar days from the start of employment.  Employees who are employed when the Ordinance takes effect will begin accruing sick time immediately, but employers may prohibit the use of accrued sick time until the 120th day after the effective date.
  • Employees generally must be permitted to carryover unused sick time from one year to the next year; however, employers are not required to allow (i) an employee to carryover more than the maximum amount of sick leave that the employee was eligible to earn in the year in which it was carried over, or (ii) the use of more than 40 hours of sick time in any calendar year.
  • Employees may use sick leave for the following purposes: (i) to care for the employee's or employee's family member's mental or physical illness, injury, or health condition, need for medical diagnosis or treatment, or need for preventative medical care; (ii) in the event of certain specified public health emergencies; or (iii) for certain specified reasons related to domestic violence, sexual assault, or stalking.
  • When the need to use sick leave is foreseeable, an employer may require reasonable advance notice of the intention to use sick time as soon as practicable. Where the need to use sick time is unforeseeable, an employer may require that an employee provide notice of the need to use sick time before the beginning of his/her work shift or work day, or, in the case of emergencies where advance notice is not possible, as soon as practicable.
  • Employers can decide whether to permit employees to use sick time in increments of less than one day or one shift.
  • If an employee takes three or more consecutive shifts or days of sick time or if the employer reasonably observes a pattern of absences indicating that the employee may be fraudulently using sick time, the employer may require that the employee provide reasonable documentation that sick time has been used for a purpose consistent with the Ordinance. The Ordinance specifies what type of documentation is considered to be "reasonable."
  • The Ordinance contains certain provisions that are specific to particular types of employers, including "Temporary Help Service Firms" and "Hospital Employers," as defined in the Ordinance.
  • Employers must provide employees with written notice of the Ordinance's requirements at the commencement of employment, or as soon as practicable for employees who are employed as of the Ordinance's effective date, and also must display a poster of employee's rights in a conspicuous and accessible place. The notice and poster must advise of the entitlement to sick time, the accrual rate, amount and terms of use of sick time, the prohibition against retaliation, and the right to file a complaint with the City.

Beyond the local level, the New Jersey Legislature continues to debate whether municipalities should be permitted to regulate sick leave and other conditions of employment. The State Senate recently approved legislation (S785) that would prohibit municipalities from adopting local ordinances mandating paid sick leave for private employers after the law's effective date, and would preempt any previously enacted local law provisions that offer less favorable benefits than the state law. Legislators in the State Assembly are currently considering a bill (A2354) that would require paid sick leave statewide, but would not preempt any of the municipal laws.

We will continue to monitor the progress of a statewide sick leave law. In the interim, New Brunswick employers should review their current sick leave policies and practices and prepare to update them in compliance with the requirements of the new law. Preexisting policies (such as sick leave, vacation day, or similar paid time off ("PTO") policies) that are equivalent to or more generous than the requirements of the New Brunswick Ordinance can satisfy the new law; however, employers should confirm with counsel that these policies are in compliance because the requirements of the new law may be more expansive than existing policies.

New Brunswick Passes Local Sick Leave Ordinance, While New Jersey Legislature Considers Statewide Paid Leave Bills

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