Following a challenge
initiated by the NFIB/NJ and five other business groups, Counsel to the City of
Trenton announced that the Trenton paid sick
leave ordinance would only apply to businesses located in
the city itself and would not apply to businesses outside its borders with
employees who physically work at least 80 hours a year in the city.
In her April 16
ruling, Judge Jacobson ultimately dismissed a complaint to overturn the entire
ordinance, but the city’s concession is good news and brings clarity to the
thousands of employers who do business in the city.
The mandated paid leave ordinance took effect on March
4, 2015 and excludes construction unions covered by collective bargaining, and
other employees covered by collective bargaining agreements from the paid sick
leave requirements.
As the Trenton law stands, paid time off can be
accrued by both part-time and full-time workers at a rate of one hour of sick
time for every 30 hours worked. Employers with 10 or more employees have
to provide up to five paid
days each year. Businesses with less have to provide up to three paid days each year —
except for workers in child care, food service, and home healthcare who would
be automatically entitled to five days.
All employees eligible for sick days are
permitted to carry over a maximum of 40 hours per year, regardless of their employer’s
size. They are not, however, be able to use more than 40 hours in one year.
Additionally, they are not entitled to carry over any time if they were paid
for the hours they did not use. Also, employees are not eligible to use their
days until working at least 90 days. While employers are permitted to ask
employees to confirm the use of the sick time in writing, they would not be
able to require advanced notice more than seven days prior to an absence.
Documentation can only be requested when an employee had used time on three
consecutive occasions.
The time provided by employers can be used:
- For an employee’s
mental or physical illness, injury, health condition, or for the diagnosis,
preventative care, or treatment of such conditions. - To care for a family member (defined as
child, stepchild, foster child, child of partner, parent,
step-parent, parent-in-law, spouse, grandparent, grandparent’s spouse/partner,
grandchild) with a physical or mental illness, injury, health condition, or for
the diagnosis, preventative care, or treatment, of a family member with
such conditions.
- For closure of the employee’s place of
business by order of a public health official, or to care for a child whose
school has been closed by order of a public health official.
-
To care for a family member when it has been
determined by authorities that the family member’s presence in the community
would jeopardize the health of others because of the family member’s exposure
to a communicable disease, regardless of whether the family member has
actually contracted the disease.
Employers have to provide their employees
with a written notice explaining their rights at the beginning of employment,
or “as soon as practicable”. Employers also have to conspicuously display
a poster explaining the ordinance in English and any other language that is the
first language of at least 10 percent of the workforce.
Records documenting employee hours and the
time taken by employees have to be kept (for an undefined period of time) and
made available upon the city’s request. Failure to provide the records would
create a rebuttable presumption that the ordinance has not been followed.
Although the ordinance states that it does
not apply to Trenton employers with time-off policies that provide the minimum
number of days required, it also says that the time must be awarded for the
same purposes and conditions as the ordinance provides. As a result, it is
likely that existing employer policies would need to be revised. The ordinance also provides
language to prohibit retaliation against employees exercising their
rights. This could result in all Trenton employers – even those with
policies – facing additional liability since the ordinance creates an explicit
right to sue if an employee believes their rights have been violated. Employers
could also face monetary fines and other penalties.
