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Employers scramble to comply with Earned Sick Leave changes in New Jersey

earned sick leave

Starting October 29, 2018 most New Jersey employers are now required to provide employees with earned sick leave to: Care for their own, or a family member’s, physical/mental health or injury; address domestic or sexual violence; attend a child’s school-related meeting, conference, or event; or take care of kids when school/child care is closed due to an epidemic or public health emergency.

For more details or to read the law and proposed rules, visit  nj.gov/labor/earnedsick.

If you have an existing policy allowing employees to use sick leave, your policy should be reviewed to ensure that it meets or exceeds the requirements of the law. In addition to rules for accruing and using earned sick leave in New Jersey, there are also rules about required employee communication and timing that may expose an employer to potential litigation.

Employees Covered and Not Covered by the Earned Sick Leave Law

Employers must provide earned sick leave to full- and part-time employees. Employers are not required to provide earned sick leave to the following workers:

  • Individuals employed in the construction industry under a union contract
  • Per diem health care employees
  • Public employees who are provided with sick leave at full pay under any other NJ law or rule
  • Independent contractors who do not meet the definition of an employee under NJ law

Notice of Employee Rights

One of the most overlooked parts of the new law, employers must provide each employee with written notice of the employee’s right to earned sick leave, including accrual and use of earned sick leave, and the right to file a complaint and be free from retaliation. The notice must state the start and end dates of your benefit year. Employees have a right to the notice in English, and, if available on the NJDOL website, their primary language. The notice is available online in our Employer Poster Packet. The notice is available in 12 languages, in addition to English.

Employers: Establishing a Benefit Year

You must establish a single benefit year for all employees. If you propose to change the benefit year, notice in writing must be provided to the NJ DOL Commissioner at least 30 calendar days prior to the proposed change.

Earned Sick Leave Accrual & Use

Employees accrue 1 hour of earned sick leave for every 30 hours worked, up to a maximum of 40 hours of leave per benefit year.

Rate of Accrual: 1 hour for every 30 hours worked

Date Accrual Begins: October 29, 2018 or the first day of employment, whichever is later

Date Earned Sick Leave Available for Use: February 26, 2019 or 120 days after first day of employment, whichever is later.

An employee can work additional hours to compensate for work missed rather than use earned sick leave, with the employer’s consent. However, an employer cannot require this, or require an employee to use earned sick leave.

Advanced Earned Sick Leave

Instead of applying the accrual method described above, the employer may choose to advance employees with no less than 40 hours of earned sick leave on the first day of the benefit year, for use throughout the benefit year. For an employee who begins employment during the benefit year, the employer may prorate advanced earned sick leave for the remainder of the benefit year, so long as the employer tracks the hours that the employee actually works and the amount of actual sick leave accrued. To avoid tracking accruals, the employer would need to advance the full 40 hours of earned sick leave.

Employee Transfers, Rehires, and Successor Employees

New Jersey has closed the loopholes for many instances of employment with the following conditions:

  • If you transfer an employee within New Jersey, he or she keeps their accrued/advanced sick leave.
  • If you terminate, lay off or furlough an employee, then rehire or reinstate her/him in New Jersey within six months, the prior accrued/advanced sick leave must be returned to the employee.
  • If a successor employer takes the place of an existing employer, all employees of the predecessor employer shall retain accrued/advanced sick leave from the predecessor employ.

Payment of Earned Sick Leave

You must pay the employee for sick leave at the same rate the employee normally earns. During a period of earned sick leave, you may not pay an employee less than state minimum wage. To calculate the rate of earned sick-leave pay for an employee whose pay fluctuates, who has two or more different jobs, is paid by piecework, or whose pay includes gratuities, food, or lodging, add together the total earnings, exclusive of overtime pay, for the seven most recent workdays, and divide that by the total hours of work during that seven-day period. For commission, whether base plus commission or commission only, the earned sick leave pay rate is the hourly base wage or the state minimum wage, whichever is greater.

Recordkeeping of Earned Sick Leave

Employers must keep and maintain records for five years documenting compliance with the law, including employee hours worked, and earned sick leave that has been accrued/advanced, used, paid out, and carried over. Reasons for used earned sick leave must be kept confidential unless the employee gives written permission to disclose it. Records must be made available to NJDOL if requested.

Advance Notice

If the need is foreseeable, employers can require up to seven days’ advance notice of an employee’s intention to use earned sick leave.

If the need is unforeseeable, an employer may require the employee to provide notice as soon as is practical, provided the employer has stated that requirement in advance. If the employer has not stated the notice requirement, the employer must allow the employee to use the unforeseeable earned sick leave without having provided any prior notice.

An employer may prohibit the employee from using foreseeable earned sick leave during high-volume periods or special events, but must provide reasonable notice of those dates.

This poses an area for subjective interpretation of the rules, and some consideration should be given.

For example:

  • If a retail establishment can accurately anticipate high-volume workload in November, reasonable notice would be at the beginning of each year, and on the first day of work for new hires.
  • If the sales team lands a large account with a tight manufacturing turn-around expected to cause overtime requirements of the staff at large, reasonable notice might be at signing of that contract for the anticipated time period.
  • If the marketing team adds a new trade show to the schedule of events, requiring participation by the sales and marketing teams, reasonable notice might be at the commitment to the event.

Documentation of Earned Sick Leave

The employer can require reasonable documentation if an employee uses more than three consecutive workdays as earned sick leave or where the employee’s need for earned sick leave is not foreseeable and is being sought for use during high-volume periods or special events. The law prohibits you from requiring the employee to specify the reason for sick leave.  Click here for a list of reasonable documentation.

Unused Earned Sick Leave

An employee may carry over up to 40 hours of unused earned sick leave to the next benefit year. However, you are required only to let an employee use up to 40 hours of earned sick leave per benefit year. Employers can choose – but are not required – to pay an employee for unused earned sick leave at the end of the benefit year.

Retaliation

Employers cannot retaliate against an employee for requesting or using earned sick leave, filing a complaint with NJDOL, or because the employee informs any other person of his or her rights under the law. Retaliation includes any discipline, discharge, demotion, suspension, loss or reduction of pay, or any other adverse action. This includes “no fault” attendance policies, where an employee receives a point or a demerit for any absence, and is subjected to discipline or loss of a promotional opportunity. If a promotion system calculates employee attendance as part of the equation, consider changing to a system using productivity and accuracy measures instead.

Complaints

If an employer allegedly has violated the law, NJ DOL will notify the employer by certified mail and provide an opportunity to request a formal hearing. The request must be received within 15 days of receipt of the notice. If the dispute cannot be resolved in an informal settlement conference, it will be forwarded for a formal hearing. If your office receives notice of abuse by NJ DOL, please contact our office immediately to review the policy, records, and claim.

Questions Regarding Earned Sick Leave Policy

If you have any questions regarding your Earned Sick Leave policy and these updates for 2018 and beyond in New Jersey, please call Radom & Wetter at 908-707-1500.

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