The New Jersey Earned Paid Sick Leave Law went into effect on Monday, October 29, 2018. If you still have questions about the new law, you are not alone.
The New Jersey Department of Labor and Workforce Development (NJDOL) is still finalizing its regulations to implement the law. While the agency published regulations to implement New Jersey’s new paid sick leave law in September, the earliest that the regulations will be finalized is January. The NJDOL plans to hold a public forum in November and is accepting comments on the proposed rules until mid-December.
To fill in some of the blanks, the NJDOL published a detailed list of answers to frequently asked questions (FAQs) on October 24, 2018. While many of the responses track the language of the statute, the NJDOL did provide new guidance on several key issues.
New Jersey’s Paid Sick Leave Law
As we have discussed in greater detail in prior posts, the Earned Sick Leave Law imposes significant new compliance obligations on New Jersey employers. The law requires employers to provide up to a total of 40 hours of earned sick leave every benefit year. Workers are authorized to use paid sick time when the employee or a family member is sick, to attend to routine medical care, or to attend a child’s school-related meeting or event. Employers who fail to comply with the law face penalties and the possibility of civil lawsuits.
NJ Sick Leave FAQs
The NJDOL’s FAQs address a wide range of issues, including which employees are covered under the law and how sick leave is accrued, used and paid. Below are some of the NJDOL’s most enlightening responses:
Is an employee who works both within New Jersey and outside of New Jersey entitled to receive earned sick leave?
The answer to the question depends largely on how much time the employee spends working in New Jersey. If the employee routinely performs some work in New Jersey and the employee’s base of operations or the place from which such work is directed and controlled is in New Jersey, then the employee is entitled to receive earned sick leave under the Earned Sick Leave Law. This is the test applied by the Division on Civil Rights in its enforcement of the New Jersey Family Leave Act. The Department anticipates adopting the same approach through formal rulemaking.
May an employer prorate advanced earned sick leave for the remainder of the benefit year if an employee commences employment during a benefit year?
Yes. An employer may prorate advanced earned sick leave for the remainder of the benefit year if an employee commences employment during a benefit year, so long as the employer tracks the hours that the employee actually works during the remainder of the benefit year and the amount of resulting earned sick leave accrual, so that in the event the employee works more hours than anticipated, the employer will have sufficient information to allow for the addition of accrued earned sick leave to the already advanced earned sick leave up to the maximum of 40 hours. To avoid tracking accruals, the employer would need to advance the full 40 hours of earned sick leave.
May an employer advance 40 hours of earned sick leave to its full-time employees, but use the accrual method for its part-time employees?
Yes. The employer has that option.
Must the employer provide notice to the employee of black-out dates?
Yes. The employer must provide reasonable notice to its employees of black-out dates on which its employees are prohibited from using foreseeable earned sick leave. Although the Earned Sick Leave Law does not expressly require that this notice be in writing, it would be advisable for an employer to provide the notice in writing so that in the event of an investigation by the Department, the employer will have evidence of the notice having been provided.
May an employee use earned sick leave in connection with an appointment at his or her child’s school if the appointment is unrelated to the health of the child and if the employee is not the child’s mother?
Yes. Earned sick leave may be used by an employee in connection with a child of the employee, whether or not the employee is the child’s mother, to attend a school-related conference, meeting, function, or other event required by a school administrator, teacher, or other professional staff member 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.
How should employers determine the amount of earned sick leave used and required to be paid for employees who routinely have jobs, assignments, projects, or shifts of varying or indeterminate lengths?
For work or shifts of an indeterminate length (e.g. shift until closing or a job that lasts until the required work is completed), employers should base the hours of earned sick leave used and paid on the hours worked by a replacement employee for the same shift. If there is no replacement employee, the hours of earned sick leave should be based on the hours worked by the employee or a similarly situated employee in the same or similar shift in the past.
If a new employee begins work when there are fewer than 120 days left in the benefit year, must the employer carry over the employee’s accrued earned sick leave into the next benefit year?
Yes. If a new employee begins work when there are fewer than 120 days left in the benefit year, the employer must carry over the employee’s accrued earned sick leave into the next benefit year. After 120 days, the employee must be permitted to use his or her accrued earned sick leave, including those days accrued during the previous benefit year and carried over to the current benefit year.
Is an employer with a compliant PTO policy required to retain records documenting hours worked, earned sick leave accrued, used, paid, paid out and carried over?
The employer with a compliant PTO policy need not retain separate records documenting the accrual, use, payment, payout and carry-over of leave taken for purposes covered under the Earned Sick Leave Law. The employer is not required to keep such records separate from records documenting leave taken for other purposes under the PTO policy. However, the employer with a compliant PTO policy must for the five-year period specified in the law retain records of the accrual, use, payment, payout and carry-over of their employees’ PTO so as to allow the Department during a possible inspection to confirm that the employer is continuing to comply with the requirements of the Earned Sick Leave Law relative to the PTO policy.
The Earned Sick Leave Law states that an employer who offers a PTO policy, which is fully paid (including but not limited to personal days, vacation days and sick days), where the PTO may be used for the purposes listed in the law and in the manner provided in the law and is accrued at a rate equal to or greater than the rate described in the law, that PTO policy is compliant with the law. If an employer has such a PTO policy, is the employer required to record hours of leave used for the purposes listed in the Earned Sick Leave Law separately from hours of leave used for other purposes under the PTO policy? For example, would the employer be required to record leave used by an employee for a typical vacation separate from leave used to care for an ill family member?
No, the employer who has a compliant PTO policy is not required to record leave used for purposes covered under the Earned Sick Leave Law separate from leave used for other purposes. Thus, in the example cited above, both the vacation leave and the leave to care for an ill family member would simply be recorded as PTO.
If an employer has an existing PTO policy that provides in excess of the 40 hours required under the Earned Sick Leave Law; for example, if the PTO program provides for 80 hours of PTO, and where under the existing PTO policy an employee had never been permitted to carry over PTO from one benefit year to the next; if after the Earned Sick Leave Law goes into effect the employee uses 40 hours of PTO in a given benefit year, must the employer permit the employee to carry-over the remaining 40 hours of PTO to the next benefit year?
In a compliant PTO policy where the employer chooses to advance PTO, rather than have the employee accrue PTO, in the final month of the employer’s benefit year, the employer must either provide the employee a payout for the full amount of unused PTO (up to 40 hours) or permit the employee to carry-over any unused PTO, except that the employer is not required to permit the employee to carry forward from one benefit year to the next more than 40 hours of PTO. Thus, in the example cited above, the employer would be required to permit the employee to carry-over the remaining 40 hours of PTO; which is to say, the carry-over requirement would not be extinguished by the employee’s use of 40 hours of PTO in a single benefit year. That said, however, as mentioned elsewhere in these FAQs, the Earned Sick Leave Law also expressly states that an employer shall not be required to permit the employee to use in any benefit year more than 40 hours of earned sick leave. Consequently, in the example cited above, although the employer would be required to permit the carry-over of the remaining 40 hours of PTO, the employer would not be required to permit the use of more than 40 hours of PTO in any benefit year. That said, as mentioned in an earlier FAQ, the Earned Sick Leave Law also permits employers to agree through a collective bargaining agreement or employer policy, to provide rights or benefits which are more favorable to employees than those required by the Earned Sick Leave Law. In the event that an employer determines that it would be in the best interests of both the employer and its employees to permit employees to use more than 40 hours of PTO in a benefit year during which the employee has accumulated in excess of 40 hours of PTO through a combination of carry-over of PTO from the prior year and advancing of PTO or accrual of PTO in the current benefit year, then the employer may permit employees to use more than 40 hours of PTO in a benefit year.
Next Steps for New Jersey Employers
The full Earned Sick Leave FAQs are available here. We encourage all New Jersey employers to thoroughly review the FAQs and contact experienced counsel with any questions.
If you have questions, contact us
If you have any questions or if you would like to discuss the matter further, please contact me, John Geppert, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.