Overview

• This law goes into effect on October 29th, 2018.
• Paid sick leave is available to every employee (hourly, salaried, full-time, and part-time).
• This law preempts every local ordinance in New Jersey.
• Every employer, regardless of size, must provide paid sick leave.
• How is Leave Accrued
  • The accrual method, under which employees earn sick leave at a rate of one (1) hour per every thirty (30) hours worked; or,
  •  The annual method, in which an employer may provide a “full complement of earned sick leave for a benefit year on the first day of each benefit year”.
  • Under either method, employers are under no obligation to allow an employee to accrue, use or carry forward more than forty (40) hours of earned sick leave.  At the end of a benefit year, an employee may carry forward their earned sick time or have it purchased by the employer.
  • No employee can accrue more than for (40) hours of paid sick time in one year.
• Employees can use their paid sick time for their own use, or to take care of a family member. A family member is defined as:
  • A child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee
  • A spouse, domestic partner, or civil union partner of a parent or grandparent of the employee
  • A sibling of a spouse, domestic partner, or civil union partner of the employee
  • Any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship
• If an employer already offers a minimum of 40 hours’ worth of paid time off, the employer is in compliance with this law. As long as employees can use their time for the purposes cited under the law, different terminology may be used (e.g. personal days, vacation days, sick days, PTO).
• Employers must pay employees at the same rate of pay they normally receive. Upon mutual consent, the employee may voluntarily choose to work additional hours or shifts during the same pay period, but an employer cannot require it.
• Employers may choose the increments in which the time off may be taken (full days, half days, etc.).
• Employers cannot mandate that their employees take more time than they are already scheduled to work. E.g. If someone is scheduled for a six-hour shift, an employer cannot mandate they take eight hours of paid time off.

Why Time Can Be Used

Employees may use their time to take care of themselves or family members due to illnesses, preventative healthcare, domestic violence situations, or school-related functions/meetings/conferences as they relate to a child’s health condition or disability.

Notices, Documentation, and Record-Keeping: What is Required?

Employers may require that employees provide up to seven (7) days advance notice of the need to use earned sick leave, where reasonably foreseeable. Employers may prohibit employees from exercising foreseeable sick leave on certain days or where it “unduly disrupts” the employer’s operations.

Employers may require “reasonable documentation” for absences of three (3) or more days; thus, an employer may not demand supporting documentation – or proof – for an employee’s use of less than three consecutive days, unless the employee uses earned sick leave on a prohibited date.

On the flip side, employers must post a notification of employee rights under the Act in a conspicuous place. Employers also must provide written notice to their employees of their rights under the Act, including within thirty days after the department has issued a model notice, at the time of hiring, and upon request by an employee. Employers also must track their employees’ hours worked, earned sick time accrued, and sick time used, and must maintain those records for five (5) years under the Act.

Importantly, employer compliance with these requirements will be subject to audit by the New Jersey Department of Labor and Workforce Development.

Must Earned Sick Leave Be Paid at Separation?

Unless otherwise required by company policy, employment contract, or collective bargaining agreement, the Act does not require that unused accrued sick leave be paid to an employee at separation.

What Are the Penalties?

Employers should fear enforcement under the Act. Employers can be prosecuted in different ways and for different reasons. This includes but is not limited to private rights of action by employees for discrimination, retaliation and violations of the Act, and for recordkeeping violations.

An employer that violates the Act will be subject to the penalties and remedies afforded to employees under the New Jersey Wage and Hour Law, which includes monetary damages and attorneys’ fees and costs, plus liquidated damages in an amount equal to the unpaid leave.

Furthermore, the Act prohibits an employer from taking discriminatory or retaliatory action against an employee who exercises their rights under the Act. Importantly, the Act creates a rebuttable presumption of retaliation when an employer takes adverse employment action against an employee within ninety (90) days of when that employee engaged in certain protected conduct as provided in Section 4(b) of the Act. Additionally, the protections against retaliation apply to any employee who “mistakenly but in good faith alleges violations of this act.”

How Should Employers Prepare for Paid Sick Leave?

This summary of the Act is merely the tip of the iceberg. Given the potential exposure to liability and other consequences arising from violations and lack of compliance, employers should revisit their employee handbooks and review their employee PTO, attendance, leave, and disciplinary policies.

Employers also should reevaluate their recordkeeping requirements to confirm compliance with the Act and should advise their managers and supervisors of the change in the law and train/educate them accordingly. Employers also have several decisions to make, including whether to implement an accrual or annual method of earning sick leave, the applicable benefit year, and the increments in which employee leave may be taken.

Additionally, employers should also prepare to post the appropriate notice in the workplace and deliver the appropriate disclosures to their employees.

Please call our office if you should have any questions.

Kleespies, Horwitz & Associates, LLC

(848)467-3990 | info@khacpas.com