Written by: Susan L. Swatski
On May 2, 2018, New Jersey became the tenth state to enact a mandatory paid sick leave law. The law goes into effect on October 29, 2018 and will require all New Jersey employers, regardless of size, to provide up to 40 hours of paid sick leave per year. The Act preempts and moots all municipal ordinances regarding paid sick time. Current employees will begin accruing sick time on October 29, 2018, so employers will need to have their revised leave policies in place in short order. Employees hired after October 29, 2018, will begin accruing sick time on their first day of employment. An employee can use accrued sick time after the 120th day of his/her first day of employment for the following reasons:
- diagnosis, care or treatment of or recovery from an employee’s own mental or physical illness, including preventive medical care;
- aid or care for a covered family member during diagnosis, care or treatment of or recovery from the family member’s mental or physical illness, including preventive medical care;
- circumstances related to an employee’s or his/her family member’s status as a victim of domestic or sexual violence;
- closure of an employee’s workplace or of a child’s school because of a public official’s order; or,
- time to attend a meeting required by school staff to discuss a child’s health.
Employers may not require an employee to find a replacement to cover the employee’s absence. The payment amount is based on the same rate of pay that the employee earns at the time of the payment, not when the time was accrued.
Under the Act, employers must designate any period of 12 consecutive months as a “benefit year.” In each benefit year, an employee may accrue up to 40 hours of sick time at a rate of one hour for every 30 hours worked. An employer may “frontload” the 40 hours of sick time at the beginning of the benefit year, but employers are not required to permit employees to use more than 40 hours of sick leave in a benefit year. Employees are permitted to carry over a maximum of 40 hours of accrued sick time. Employers may, at their discretion, buy out an employee’s unused accrued sick time in the month before the end of the benefit year. An employee has the option to either have the entire amount of unused sick time paid out or 50 percent of the time. The Act does not require the employer to pay employees for unused accrued sick leave upon separation from employment. Employers with existing paid time off, personal days, vacation days and sick-day policies may use those policies to comply with the Act provided employees can use the time off as required by the Act.
Employers must post a notification of employees’ rights under the Act and provide employees with a written copy of the notice within 30 days after the Department of Labor has issued a model notice and each time thereafter when an employee is hired. Employers also must retain records documenting paid sick time taken by employees for a period of five years.
The Act provides for a private right of action that includes, among other remedies, liquidated damages in an amount equal to the actual damages sustained by the employee. The Act also contains anti-retaliation provisions that include a rebuttable presumption that an employer’s actions are unlawful if the employer takes adverse action against an employee within 90 days of the employee engaging in activity protected under the Act. Protected activities include filing a complaint with the Department of Labor, cooperating with an investigation, opposing policies and practices that are unlawful under the Act or informing other individuals of their rights under the Act.
Your business likely will be impacted by the Paid Sick Leave Act. You should start preparing now to ensure your sick leave, paid time off and vacation policies are compliant with the Act. You should also include training on the retaliation provisions of the Act for managers and supervisors.