The United States is the only developed country that does not require that employers offer paid sick leave to their employees. On January 20, 2015, during his State of the Union speech, President Obama addressed the issue, requesting that the federal government pass a law requiring employers allow employees to earn up to seven paid sick days per year. In the meanwhile, he suggested that cities and states should pass their own laws mandating paid sick leave. Following his announcement, many additional cities and states rallied to pass various sick leave ordinances. To date, eight municipalities in New Jersey have done so: Jersey City, Newark, Passaic, East Orange, Paterson, Irvington, Trenton and Montclair.
In addition to these local laws, statewide paid sick leave legislation is in the works: in December 2014, the New Jersey Assembly Labor Committee and the Assembly Budget Committee voted in favor of a bill outlining a state-wide paid sick leave law. Under the proposed state regulation, employers with less than 10 employees would be required to provide up to 40 hours of earned sick leave, while employers with more than 10 employees would be required to provide up to 72 hours. If local laws required more generous leave, the State bill would not preempt them. The bill still must be presented to the full Assembly, possibly with significant alterations, before it has a chance of becoming law, but chances are good that some kind of statewide mandate will pass in the next few years.
A patchwork of different (but similar) regulations
Although in many ways they are identical, the municipal ordinances do vary – some allow for sick leave to be paid or unpaid, and some details of the accrual process and amount are different. Other than Jersey City, the municipalities share certain similarities in their ordinances:
- All private employers must comply, regardless of number of employees
- Most employees are eligible – any who work 80 or more hours in a calendar year
- Collective bargaining agreements can waive the requirements or delay the time an employer’s compliance must begin
The amount of accrual required varies, but typically the ordinances mandate that after the 90th calendar day of their employment, employees begin accruing hours of paid sick leave based on time worked (e.g., one hour of sick time accrues for every 30 hours an employee works). The maximum number of accruable sick time hours varies by the size of the business, the nature of the business, and the specific requirements of each local ordinance. Most ordinances allow employees to either be paid out for unused, accrued time at the end of each year or carry it over into the next.
Permitted use of sick leave
Under the ordinances, employees can use sick time for the medical diagnosis, care or treatment of their own or their family member’s mental or physical illness, injury, or health condition. The definition of “family member” is fairly broad. Other circumstances such as public health emergencies can also be approved circumstances for use of leave, depending on each law’s specifics.
The increments in which accrued paid sick time may be used depends on the regulation (e.g., whole days, half days, hours, etc.); some of the ordinances leave the decision to each employer’s discretion.
All of the current ordinances allow employers to require reasonable advance notice of an employee’s use of paid sick time, if the leave is foreseeable, or before the beginning of the employee’s scheduled shift if it isn’t, with exceptions for emergencies.
If an employee uses more than three consecutive days (or has three consecutive instances of leave, if used in smaller increments), an employer can require reasonable documentation signed by a healthcare professional that the sick time has been used for a covered purpose. Note that an employer cannot require that such documentation explain the nature of the illness; if protected health information is obtained by the employer related to the leave it must be treated as any other confidential health information.
Employers must provide individual written notice to each current employee about his or her rights under the ordinance as soon as reasonably possible after the ordinance takes effect, and to new employees when they begin their employment. Employers must also display a poster (in English and any other language that is the primary language of more than 10% of the employer’s work force) in a conspicuous place in each business location containing notice of the ordinance.
Employers who violate one of the paid sick leave ordinances may be fined up to $500 per day for each day in which a violation occurs, in addition to restitution to the employee of any amount of paid sick leave unlawfully withheld. Enforcement of the ordinances is tasked to each municipality’s Department of Health and Human Services or similar health enforcement department. Additionally, the mandates prohibit retaliation against any employee for exercising his/her rights under a paid sick leave ordinance, violation of which could result in a complaint with the department of labor or a lawsuit.
Employers with a paid time off (“PTO”) policy may continue to use their own system in lieu of a specific paid “sick” leave policy as long as the paid leave amounts to at least the total annual accrual requirement set forth in the ordinances and is available for use under the same conditions and purposes. For this reason, particularly if your business employs workers at multiple locations in different affected cities, or employees who work in multiple affected locations, it may be beneficial to implement a company-wide PTO policy that is generally compliant with all the existing ordinances. Either way, your should review all time tracking, payroll, and benefits systems to ensure they calculate, track and detail accrued and used sick time accurately in compliance with the laws.
If you’re an employee who thinks you have been denied appropriate leave, or disciplined, terminated or retaliated against as a result of using protected leave, we can help you understand your rights and your best course of recovery under the laws.
 A “family member” includes a biological, adopted, or foster child; stepchild or legal ward; a child of a domestic partner; a child of a civil union partner; or a child to whom the employee stands in loco parentis; a biological, foster, stepparent, or adoptive parent or legal guardian of an employee or an employee’s spouse, domestic partner or civil union partner or a person who stood in loco parentis when the employee was a minor child; a person to whom the employee is legally married under the laws of New Jersey or any other state or with whom the employee has entered into a civil union; a grandparent or spouse, civil union partner or domestic partner of a grandparent; a grandchild; a domestic partner; or a sibling.