New rules further explain employer responsibilities in current law.
Legal Alert: Department of Labor and Workforce Development Unveils New Earned Sick Leave Rules
On January 6, 2020, the New Jersey Department of Labor and Workforce Development (DLWD) issued Earned Sick Leave Rules that further explain employer responsibilities under The New Jersey Earned Sick Leave Law, which took effect on October 29, 2018.
New Jersey’s Sick Leave Law gives New Jersey employees the right to accrue and use up to 40 hours of paid sick leave (PSL) in any period of 12 consecutive months. Employers who violate the PSL law can be subject to significant administrative, civil, and potentially criminal charges. Accordingly, employers should evaluate their PSL policies in light of DLWD’s new rules.
Employer “means any person, firm, business, education institution, non-profit agency, corporation, limited liability company, or other entity that employs employees in the state, including a temporary help services firm.”
With a few exceptions, the act covers all full and part-time employees engaged in service for compensation in the state of New Jersey. Out-of-state employers with employees in New Jersey must provide PSL to its employees who work in New Jersey.
Taking Leave: Employee Requirements
PSL hours can be accrued at a rate of one hour of leave for every 30 hours worked, or employers may choose to make the entire 40 hours of PSL available to employees at the beginning of the Benefit Year, as defined by the employer.
Employees may use accrued PSL after their 120th day of employment, for any of the following reasons:
- Employee’s Mental/Physical Illness: Diagnosis, care or treatment of, or recovery from, an employee’s own mental or physical illness, including preventive medical care.
- Family Member’s Mental/Physical Illness: Aid or care for a covered family member during diagnosis, care or treatment of, or recovery from, the family member’s mental or physical illness, including preventive medical care.
- Victim of Domestic/Sexual Violence: Circumstances related to an employee’s or their family member’s status as a victim of domestic or sexual violence (including the need to obtain related medical treatment, seek counseling, relocate or participate in related legal services).
- Public Health Emergency: Closure of an employee’s workplace or of a school/childcare of an employee’s child because of a public official’s order relating to a public health emergency.
- School-Related Parental/Guardian Attendance: Time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff members responsible for the child’s education, or to attend a meeting regarding care provided to the child in connection with the child’s health condition or disability.
Employers may require employees to submit reasonable documentation if they use PSL for three or more consecutive days, or if the employee uses PSL for an unforeseeable absence on “certain dates” identified by the employer in advance (i.e., high volume periods for retail). DLWD’s new rules provide examples of acceptable documentation.
Accrual of Leave: Up to 40 Hours or Payout
Employers are not required to permit employees to use more than 40 hours of PSL in any benefit year or carry over more than 40 hours of unused sick leave to the following benefit year. However, the law does not allow employers to adopt a “use it or lose it” policy. Instead, an employer must either provide employees with a payout for the full amount of unused earned sick leave or permit an employee to carry over up to a total of 40 hours of accrued unused earned PSL. For payouts, an employer must pay an employee for earned PSL at the same rate of pay with the same benefits as the employee usually earns.
Note, however, that an employee is not be entitled to a payout of unused earned sick leave upon separation from employment unless the employer’s policy or a collective bargaining agreement provides for a payout of unused sick leave.
Steps for Compliance: Notice of Employee Rights and Recordkeeping
Employers should ensure they have prepared and distributed the required Notice of Employee Rights and updated employee handbooks to include a PSL policy.
- The Notice of Employee Rights should be posted conspicuously in each of the employer’s workplaces and each employee should receive a written copy.
- The Notice of Employee Rights must include the Benefit Year that the employer has chosen for the purposes of accrual of paid sick/safe time. Employers should choose the same 12-month period that they use for the accrual of other types of paid time off, which is usually the calendar year. Once the Benefit Year is communicated to employees, an employer cannot change it without notifying the Commissioner of DLWD.
Employers must also keep records for five years of PSL accrued or advanced, paid, and cashed out or carried over.
Employers with questions can contact the NFIB Small Business Legal Center at 800-NFIB-NOW. Employers can also contact the DLWD’s Division of Wage and Hour Compliance by telephone at 609-292-2305 or by email at [email protected]
This alert is for informational purposes only and does not constitute legal advice.
Updated January 10, 2020