New Jersey Employers Need to Prepare for Mandatory Paid Sick Leave

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Following the enactment of a sweeping Equal Pay Law, on May 2, 2018, Governor Murphy signed the Earned Sick and Safe Days Act, which mandates that employers in New Jersey provide paid sick leave to their employees. The Act takes effect on October 29, 2018 and will preempt all existing local sick leave ordinances when it takes effect.

Paid Sick Leave Requirements

 The Act requires all employers in New Jersey to provide up to 40 hours of paid sick leave each year. Employers will need to establish the benefit year, which must be a consecutive 12 month period, such as a calendar year or based upon an employee's start date. Once the benefit year is established by a business, it cannot be changed without notice to the New Jersey Department of Labor.

Paid sick leave must accrue at a minimum rate of one hour for every 30 hours worked. Alternatively, employers can grant the 40 hours of paid sick leave on the first day of the benefit year. New employees are eligible to use paid sick leave after 120 days of employment.

 Unless paid sick leave is granted in full at the beginning of the benefit year, employees must be allowed to carry over accrued unused sick leave from one benefit year to the next. Businesses can, however, cap the paid sick leave benefits to 40 hours in a benefit year, so carried over paid sick leave will not add to an employee's total eligible paid sick leave in a given benefit year.

 Permitted Uses of Sick Leave

 Eligible employees may use paid sick leave for several reasons, including:

  • For the diagnosis, care, treatment, recovery or preventive care for a mental or physical condition of the employee or the employee's family member;

  • To obtain counseling, legal services or medical attention, or to relocate, or participate in legal proceedings in connection with the employee or a family member being a victim of domestic or sexual violence;

  • The closure of the employee's workplace or a child's school or place of care due to a public health emergency;

  • To attend a school related conference or meeting.

The Act defines "family member" very broadly to include not only children, grandchildren, siblings, spouses, parents, grandparents, and domestic and civil union partners, but also any individual "whose close association with the employee is equivalent of a family relationship."

 Employers that have or implement a paid time off (PTO) policy that provides sufficient PTO to comply with the Act are not required to provide additional paid sick leave. 

 Employee Notice

 Employers may require employees to provide up to seven days advance notice for foreseeable leave. Notice for unforeseeable leave must be given as soon as practicable. Employers may request documentation supporting absences of three or more consecutive days.

 Private Right of Action

 The Act creates a private right of action, so employees who are denied eligible paid sick leave can sue their employers to recover unpaid wages plus liquidated damages of an equal amount (i.e. a total of two times the unpaid sick leave). 

 The Act also creates a cause of action for unlawful retaliation if an employee is subjected to an adverse employment action for engaging in a protected activity such as taking sick leave, reporting violations of the Act, filing a complaint, cooperating in an investigation, or informing others of their rights under the Act. 

 If an adverse employment action takes place within 90 days of an employee engaging in a protected activity, the Act provides for a "rebuttable presumption" that retaliation occurred, seemingly shifting the burden on the employer to show that the adverse employment action was lawful.

Next Steps for Employers

 In order to prepare for the Act, businesses based in New Jersey, as well as those with employees working in New Jersey, should review and update, as necessary, their paid time off policies to ensure compliance with the law. 

If you have any questions about your business's employment policies or the Earned and Sick Safe Days Act, please contact us at (201) 345-5412 or info@morealaw.com.