United States: New Jersey Employers: The State Paid Sick Leave Law Is Now In Effect – Are You Ready?

Last Updated: November 5 2018
Article by Sherri A. Affrunti

The New Jersey Paid Sick Leave Act takes effect today, October 29, 2018. Just in time for flu season.

If you are a New Jersey employer or an employer with employees in New Jersey, regardless of size or employee number, you are now required by law to provide one hour of sick leave for every 30 hours worked – up to 40 hours in a benefit year – to all employees (including part-time and seasonal) with the minor exceptions of: (i) per diem health care employees, (ii) construction workers employed under a collective bargaining agreement (who will later begin to accrue sick leave under the law on the date the agreement expires), and (iii) public employees previously entitled to sick leave benefits under state law.

Sick leave under the law begins to accrue on the law's effective date (October 29th), or upon an employee's later date of hire, and may begin to be used 120 days after an employee's start of employment (or upon such earlier date that an employer permits). Leave granted under the law may be advanced in whole, or be subject to accrual.

The state law preempts the various municipal laws previously in effect. Employers who provide paid time off (PTO) banks are compliant with the Act provided the PTO may be used for the purposes and in the manner set forth under the state law and is accrued at a rate equal to or greater than the rate provided by the law.

An employer may choose the increments in which an employee may use earned sick leave, provided that the largest increment required does not exceed the number of hours an employee is scheduled to work for that shift (including any overtime). Acceptable reasons for using paid sick leave include: (i) for preventative care or the diagnosis, care, treatment or recovery of an employee's own mental or physical illness, injury or health condition, or that of their family member; (ii) treatment, counseling or preparation for legal proceedings necessary following domestic or sexual violence to an employee or their family member; (iii) an employee's need to attend school-related conferences, meetings or events regarding their child's education, or to attend a school-related meeting concerning their child's health; or (iv) an employee's time off upon the employer's closing, or the closing of their child's school or child care provider, due to a public health emergency.

For purposes of the law, "family members" include an employee's: (a) husband, wife, or domestic or civil union partner; (b) own biological, adopted, or foster child, step child, legal ward, or the child of their domestic or civil union partner; (c) grandchild; (d) sibling, or sibling of their spouse or domestic or civil union partner; (e) own parent (whether biological, adoptive, stepparent, or foster, legal guardian, or person standing in loco parentis), or the parent of their husband, wife, or domestic or civil union partner; (f) own grandparent, or the grandparent of their husband, wife or domestic or civil union partner; (g) other blood relatives; or (h) individuals whose close association to them is the equivalent of family.

Scheduling of earned sick leave may only be required in advance if the need for the leave is foreseeable – and in those limited instances, an employer may (x) require 7 days' advance notice of the need and duration of the leave, (y) request reasonable efforts be undertaken to schedule the leave in a manner that does not disrupt the employer's business operations, and (z) prohibit use of sick leave on certain dates (the "black-out dates"). Where the need to use sick leave is unforeseeable, an employer may only require the advance notice that is practicable. Reasonable documentation of the leave associated with an employee's own or family member's health may be requested only if the use of earned leave for is for three or more consecutive days or arises on an employer's black-out dates; however, health care providers are not required by the law to specify the medical reason for the leave (stating the need for sick leave and, if possible, the duration is sufficient). The statute specifies a variety of other documentation that shall be deemed "reasonable" to support a sick leave request for non-health care reasons, including but not limited to court orders, documentation of a sexual offense or violence, law enforcement records or reports, or orders from public officials.

At the end of the benefit year, employers who advance sick leave for the next benefit year on the first day of that year must either provide payment for the full amount of any unused earned sick leave remaining in the prior year or carry the remaining time over into the next benefit year. If employees carry over the earned time, the employer is only required to let the employee use 40 hours of leave per benefit year, and is not required to pay out the earned, unused leave at termination of employment unless an employer policy or collective bargaining agreement provides for such a payment. Rights to sick time survives inter-company transfers, separation of an employee followed by reinstatement within 6 months, and acquisitions by successor organizations. Employers must maintain documentation of employee hours worked and sick leave earnings and usage for a period of 5 years. Supporting records of the need for leave must be maintained confidentially, with restricted access.

The law contains penalties – including double liquidated damages and potential criminal sanctions – for non-compliance with its requirements and for retaliation against employees who request and use earned sick leave, communicate with others concerning the law, file a complaint, or participate in an investigation for alleged violations of the law. The law provides for a private right of action and includes a rebuttable presumption of retaliation for adverse employment actions taken with 90 days of an employee's protected activities under the Act.

The New Jersey Department of Labor & Workforce Development (NJDOL or Department) recently published a "Notice of Employee Rights" which employers must now provide to employees on (1) the start date of their employment and (2) upon request. Existing employees must also receive a copy of the Notice, and the Notice must be posted in an accessible location for employees (which may be an electronic portal), by November 29, 2018. Notices should be posted and otherwise provided to employees in English, Spanish or other language that is a first language for a majority of the employer's workforce. If you have not yet posted the Notice and distributed to your employees, you should do so now. A link to the English version of the Notice is attached here. The NJDOL expects to publish the Notice in ten additional languages.

The NJDOL will undertake efforts to educate covered individuals about their rights under the law, but the Department's actions will not relieve an employer of its notice obligations. The Department has also endeavored to provide printed guidance for employees and employers to reference in its "New Jersey Earned Sick Leave FAQs" published just days ago. A copy of the FAQs is attached here.

The NJDOL additionally published proposed regulations for the sick leave law last month. Succinctly stated, the proposed regulations:

  1. make clear that employees are not eligible to use earned sick leave until 120 days after the law's enactment (February 26, 2019), or 120 days after the start of their employment, whichever date is later (although note that accrual begins on the law's enactment date);
  2. expand upon the potential substitution of PTO for sick leave banks, stating that a PTO policy must meet or exceed all requirements of the law relating to accrual rate, permitted use, payment rate, and carryover or payment for earned unused time;
  3. clarify that, absent express approval of the Department, employers are required to establish a single "benefit year" for all employees and cannot use an "anniversary year" as the designated benefit year;
  4. limit permissible employer black-out dates for sick leave to "verifiable high volume periods or special events" where permitting the use of foreseeable earned sick leave would "unduly disrupt" the employer's operations;
  5. define methods for determining the rate of pay for employees who take sick leave and work at two or more rates, earn commissions, are paid on a piecework basis, or whose earnings include gratuities, food or lodging;
  6. provide that discretionary bonuses and overtime premiums do not need to be included in the calculation of the payrate;
  7. state that employer records must include documentation of hours worked, sick leave accrued or advanced, sick leave used, amounts paid for sick leave, and amounts paid out or carried over at benefit year-ends;
  8. establish that employees may not be subject to points or demerits for sick leave under employer "no fault" attendance policies;
  9. state that the "ABC test" will be used to confirm independent contractor status exempt from the Act; and
  10. set forth the penalties for violations of the law.

A public hearing on the proposed regulations is scheduled for November 13, 2018 before the Department, and the foregoing draft rules may change following public comment. A copy of the proposed regulations may be found here.

Although we await the final regulations, in addition to distributing the Notice, New Jersey employers should assure that they have updated sick leave or PTO policies in place which provide at least the equivalent rights and benefit stated in the law. They should also train managers on the requirements of the new law and the expanded employee rights the law provides (including on the permissible uses for sick leave, limited notices, and documentation provisions).

We will continue to track the proposed regulations and keep employers abreast of further developments, including the substance and implementation date for the final rules.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions