On May 2, 2018, New Jersey Governor Phil Murphy signed an expansive paid sick leave program with Bill, A-1827. New Jersey has joined nine other States in the United States that have enacted paid sick leave for all employees who are absent due to illness or to take care of sick family members. A1827 provides that NJ workers can accrue one hour of earned sick leave for every 30 hours worked, up to 40 hours each year. The Bill also entitles employees to carry forward any unused or unpaid sick leave up to 40 hours to the next benefit year. The Bill further permits employers to create more generous policies that provide additional leave time. This law goes into effect as of October 30th 2018.
Approved Reasons for Use of Sick Leave
The Bill allows Employees to use paid sick leave for the following:
Definition of Family Member
The Bill provides that "family member" includes, not just the nuclear family, but also grandparents, spouses of grandparents, brothers and sisters-in-law, "or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship." This would appear to include distant cousins as well as close personal friends.
However, the Bill does not require an employer to provide paid "sick leave" for purposes other than those identified in the law, and can discipline an employee for doing so. For example, an employee cannot take "sick leave" for any reason other than an illness, domestic violence event, school meeting or public emergency involving the employee or "family member." Therefore, "sick leave" cannot be taken as a universal justification for a paid day off from work. Additionally, the employer can prohibit employees from using foreseeable sick leave on certain dates, for example during the holiday season.
Definition of Employer
This Bill broadly defines employers as any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company or other entity that employs employees in the State. Temporary service firms were also expressly included as an employer under this Bill. However, per diem healthcare employees, construction workers employed pursuant to a collective bargaining agreement and public employees who already have sick leave benefits are expressly excluded from the definition of "employee" under the Bill. As such, most businesses that have employees must adhere to this new Bill.
How Sick Leave Can Accumulate
In addition, the sick leave is accumulated throughout the year and the employer can annually offer to pay-out accumulated sick leave at the end of the year. The Bill provides that the employee is required to advise the employer within 10 days if he/she wants to be paid the full amount or be paid 50% of the days and carry over the remaining days into the new year. Unless an employer policy or a collective bargaining agreement provides for the payment of accrued earned sick leave upon termination, resignation, retirement or other separation from employment, an employee is not entitled to payment of unused earned sick leave upon the separation from employment.
Enforce of the Bill
The Bill also prohibits retaliation against employees that use their sick leave and sets forth remedies for violations of the bill. The Bill also contains an anti-retaliation provision that sets forth a "rebuttable presumption" of retaliation if an adverse action is taken against an employee within 90 days of specified protected activity. The penalty for failing to provide an employee with earned sick leave will be regarded as a failure to meet the wage payment requirements of the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11- 56a et seq.), or other violation of that act.
An award of civil damages to an employee includes, not only the actual damages suffered by the employee as the result of the violation, but also an equal amount of liquidated damages. Employers are required to retain records documenting hours worked for five years. The records must be made available for inspection.
Comment: This new Bill will impact most businesses in the State of New Jersey that has employees. There are very specific requirements in this Bill that provides paid sick leave to employees and how it is accumulated. The requirements will be effective in six months, which provides you time to meet with your attorney to discuss implementation of paid sick leave and how to update your employee handbooks.
For more information, please contact Alexander W. Ross Jr. at firstname.lastname@example.org or 856.382.3054 or Christina M. Abreu at email@example.com or 973.854.1075.
Jennifer R. Williams