Earned Sick Leave Becomes the Law in New Jersey

New Jersey Just Became the 10th State in the Country With Earned Sick Leave Law

On May 2, New Jersey became the 10th state in the country with a paid sick leave law. Under the new Earned Sick and Safe Days Act (Act), workers are entitled to at least five sick days a year, earning one hour of paid sick time for every 30 hours they work. Employers must pay workers for earned sick leave at the same rate of pay, and with the same benefits, as the employee normally earns.

The new law, which applies to all private employers regardless of size, with several exceptions, will take effect on October 29, 2018. While the Earned Sick and Safe Days Act will create new compliance burdens for New Jersey employers, the good news is that the law expressly preempts 13 existing local paid sick leave ordinances. Accordingly, employers will no longer face the arduous task of complying with a patchwork of local laws.

Who Is Covered Under NJ’s New Sick Leave Law?

The Act covers nearly all private businesses that employ workers within the state. Temporary help service firms must provide leave to all workers on the basis of their total time worked on assignments for the firm, rather than the time worked for specific clients.

The law excludes per diem healthcare workers and construction workers covered by a collective bargaining agreement (CBA). In addition, it does not apply to non-construction employees covered by a CBA that is effective when the law goes into effect. However, it will apply when the CBA expires. Employees and their representatives may waive the rights available under the law and address paid leave in collective bargaining. Public employers who provide such sick leave pursuant to another State law are exempt.

How Is Leave Accrued/Carried Over?

Employers are not required to allow workers to accrue or use in any benefit year, or carry forward from one year to the next, more than 40 hours of earned sick leave. Accrual will start on the effective date of the law for employees who began working prior to the effective date. For new employees, sick leave begins to accrue when employment commences. 

The Act authorizes employers to offer payment to an employee for unused earned sick leave in the final month of the benefit year, which the employee may either accept or decline.  If the employee declines payment for unused earned sick leave, or agrees to a partial payment, the employee may have the unused leave carried forward to the following year.  

When Can Workers Take Leave?

Employees use their earned sick leave beginning on the 120th day after employment starts unless the employer agrees to an earlier date. The employee may subsequently use earned sick leave as soon as it is accrued. 

Under the new sick leave law, workers may use paid leave for their own qualifying need or for that of a family member. The term “family member” is defined broadly to include children, grandchildren, siblings, spouses, domestic partners, civil union partners, parents, and grandparents, as well as any individual “whose close association with the employee is the equivalent of a family relationship.”

The Act entitles employees to use earned sick leave in the following situations:

• For diagnosis, care, treatment, or recovery related to the employee’s illness;
• To care for a family member during diagnosis, care, treatment, or recovery related to the family member’s illness;
• For certain absences resulting from the employee or a family member being a victim of domestic or sexual violence;
• For time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, in connection with a public health emergency or a determination that the presence of the employee or child in the community would jeopardize the health of others; or
• To attend a school-related conference, meeting, event, or to attend other meetings regarding care for the employee’s child.

Can Employers Require Documentation?

If an employee’s need to use earned sick leave is foreseeable, an employer may require advance notice, not to exceed seven calendar days prior to the date the leave is to begin, of the employee’s intention to use the leave and its expected duration. Workers must also make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer. If the reason for the leave is not foreseeable, an employer may require the employee to give notice of the intention as soon as practicable, if the employer has previously notified the employee of this requirement.

Employers may prohibit employees from using foreseeable earned sick leave on certain dates and require reasonable documentation if sick leave that is not foreseeable is used during those dates. For earned sick leave of three or more consecutive days, an employer may require reasonable documentation that the leave is being taken for a permitted purpose.

How Will the Earned Sick and Safe Days Act Be Enforced? 

The Act prohibits retaliatory personnel actions against an employee for the use or requested use of earned sick leave or for filing a complaint for an employer’s violation of the provisions of the law. In addition, the Act establishes a rebuttable presumption of retaliation when an employer takes adverse action against an employee within 90 days of the employee engaging in protected conduct.

Any failure of an employer to provide or pay earned sick leave, or any other violation of the Act, will be regarded as a failure to meet the wage payment requirements of the New Jersey State Wage and Hour Law. Aggrieved employees can file a claim with the New Jersey Department of Labor and Workforce Development or pursue a civil lawsuit. In addition to remedies, penalties or fines available under the Wage and Hour Law, prevailing employees may be entitled to actual damages as well as liquidated damages.

What Other Compliance Burdens Will NJ Businesses Face? 

Employers must retain records documenting the hours worked by their employees, as well as any sick leave they take, for a period of five years. If an employee alleges that an employer has failed to provide earned sick leave, and the employer has not maintained or retained adequate records documenting the hours worked by the employee and earned sick leave taken, a presumption arises that the employer has failed to provide the earned sick leave, absent clear and convincing evidence otherwise. 

As with other state labor laws, employers must display a poster informing workers of their rights under the Act. They must also provide individual notice to all employees within 30 days of the N.J. Department of Labor and Workforce Development issuing such a notice. Thereafter, the notice must be provided to all new employees upon hiring.

What Should NJ Employers Do Now? 

New Jersey employers will now only be required to comply with one statewide paid sick leave law. However, the Earned Sick and Safe Days Act is more comprehensive than many local paid leave ordinances in terms of coverage, allowable reasons for leave, and record keeping obligations.

Because the requirements differ, and this may be the first time that many small businesses have had to comply with a paid leave law, we encourage all employers to discuss the new law with experienced counsel. For assistance, contact a member of the Scarinci Hollenbeck Labor & Employment Group.

If you have questions regarding the Earned Sick and Safe Days Act, please contact us

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, John G. Geppert, or the Scarinci Hollenbeck attorney with whom you work at 201-806-3364.