In October 2018, the New Jersey Paid Sick Leave Act became effective. The Act requires employers in New Jersey to provide employees with one hour of paid leave for every 30 hours worked, which accrues up to a max of 40 hours that can carryover each year. An employee may use the leave for their own care or that of a family member. The citation for the Act is NJSA 34:11D et seq. The Act incorporates the penalties and remedies of the Wage and Hour Law, providing for civil actions to recover liquidated damages, costs and attorney’s fees in addition to actual damages.
Coverage and Exclusions
The Act applies to all employees and employers in the state, except for the following. The only exclusion for employers are public employers that are already required to provide sick leave with full pay pursuant to any other law, rule or regulation. For employees, the only exclusions are (i) construction workers who are under a collective bargaining agreement, (ii) per diem healthcare employees (definition explains this exclusion in greater detail, see NJSA 34:11D-1), and (iii) public employees who already receive fully paid sick leave.
Leave began accruing on the effective date of the Act, October 29, 2018, for people already employed, and begins to accrue on the first day of employment otherwise. An employee is eligible to begin using accrued paid leave on the 120th calendar day after they begin accruing the leave.
Leave accrual and use is based on the “benefit year,” which is a consecutive 12-months established by the employer (and once set, cannot be changed without notice and regulations of the state). Most employers will likely use the calendar year or fiscal year.
Unused accrued hours from the benefit year roll over to the next benefit year capped at 40 hours. Employers have the option of providing employees the option of paying out unused days during the final month of the benefit year in lieu of rolling over.
Permitted Leave Use
An employee may use paid leave for the following purposes:
Diagnosis, care, treatment, or recovery from a mental or physical illness, injury, or other adverse health condition or preventive medical care for an employee or employee’s family member, which is defined broadly to include, but not limited to, an employee’s child, grandchild, sibling, spouse, domestic or civil union partner, parent, or any other individual related by blood to the employee, or whose close association with the employee is the equivalent of a family relationship.
For specified purposes, if the employee or employee’s family member is a victim of domestic or sexual violence, including, but not limited to, obtaining related medical treatment, seeking consultation, relocation, or participation in related legal services.
Closure of an employee’s place of business, a child’s school or place of care, or need to care for a family member due to a public health emergency.
Attendance at a school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the employee’s child’s education, or a meeting regarding care provided to the child regarding the child’s health conditions or disability.
- Employers must provide new employees with written notice of the Act, and post a notice in English, Spanish and any other language necessary in a conspicuous manner.
- Employers may require up to seven days of advance notice to use leave for absences that are foreseeable and may schedule the leave as reasonably able to accommodate the business. If the leave is not foreseeable, an employer may require an employee to give notice of intent to take leave as soon as practicable. Employers may prohibit employees from using foreseeable earned sick leave on certain dates, and require documentation if sick leave that is not foreseeable is used during those dates.
- For leave of three or more consecutive days, an employer may require reasonable documentation that the leave is being taken for a permitted purpose, primarily doctor’s notes, but also court orders, law enforcement records or notes from attorneys, social workers, etc. for domestic violence instances.
An employer may discipline an employee for taking improper leave.
Upon termination of employment, an employer does not need to pay out unused paid sick days. However, if an employee is rehired within 6 months of termination, unused leave is reinstated. If an employee is transferred within an employer’s business, they take their accrued leave with them.
Employers must keep paid sick time records for five years. If an employer fails to keep adequate records, it shall be presumed that the employer failed to provide the earned sick leave, absent clear and convincing evidence otherwise. Penalties for recordkeeping violations under the Wage and Hour Law are incorporated.
Anti-Retaliation; Penalties; Remedies
Employers may not take retaliatory personnel action or discriminate against an employee because the employee requests or uses earned sick leave, or files a complaint with the State (Commissioner of Labor and Workforce Development).
Employers may not count earned sick leave as an absence that may result in adverse action.
There is a rebuttable presumption of unlawful retaliatory action whenever an employer takes adverse action against an employee within 90 days of that employee raising a complaint or report of an employer’s alleged violation of the Act, including, filing a complaint with the state, informing anyone of an alleged violation, cooperating in an investigation of an alleged violation, informs anyone of their rights under the Act, or opposes any policy or practice that is unlawful under the Act. These protections apply to anyone who mistakenly in good faith alleges a violation of the Act.
Violators of the Act are subject to the penalties and remedies under the New Jersey Wage and Hour Law. This includes the right to file a civil action for remedies. An award in a civil action shall include liquidated damages of the amount of actual damages, costs and attorney’s fees.
The employment attorneys at Castronovo & McKinney are available to discuss your particular situation. We offer a free confidential consultation. Call today and speak with a lawyer who can help.