News, Articles & Resources

Under New Jersey’s Earned Sick Leave Law, N.J.S.A. § 34:11D-1 et seq. (the “Act”), effective October 29, 2018, all employers in New Jersey must now provide their employees working in New Jersey with paid sick leave each “benefit year”. The Labor and Workforce Development Division of Wage and Hour Compliance issued Proposed Rules, N.J.A.C. 12:69 et seq. to clarify and expand upon the Act. A hearing on the Proposed Rules is scheduled for November 13, 2018.

Methods

Under the Act, and as further expanded upon by the Proposed Rules, the employer must provide earned sick leave to each employee using either the “accrual method” or the “advancing method.” Under the accrual method, the employee will accrue one hour of earned sick leave for every 30 hours worked. The employer is not required to permit the employee to accrue more than 40 hours of earned sick leave in any benefit year. For an employee who commences employment on or before October 29, 2018, earned sick leave will begin to accrue no later than October 29, 2018. For an employee who commences employment after October 29, 2018, earned sick leave will begin to accrue on the date the employment commences.

Under the advancing method, an employer may, on the first day of the benefit year, provide the employee with no less than 40 hours of earned sick leave for use throughout the benefit year. A “benefit year” is a period of 12 consecutive months established by an employer in which all employees must accrue and use earned sick leave

Use & Payment

An employer must permit an employee to use earned sick leave for any of the following reasons:

1. Time needed for diagnosis, care, or treatment of, recovery from an Employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee;
2. Time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member;
3. Absence necessary for certain medical and/or legal purposes due to circumstances resulting from the Employee, or a family member of the Employee, being a victim of domestic or sexual violence;
4. Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others; or
5. Time needed by the employee in connection with a child of the employee to attend a school related conference, meeting, function or other event regarding care provided to the child in connection with the child’s health conditions or disability.

An employer is not required to permit an employee to use more than 40 hours of earned sick leave in any benefit year. An employer may choose the increments in which its employees use earned sick leave (e.g., 1-hour increments), provided that the largest increment of earned sick leave that an employee may be required to use for each shift for which earned sick leave is used is the number of hours the employee was scheduled to work during that shift. The employer must pay the employee for earned sick leave at the same rate of pay as the employee normally earns.

Paid Time Off

An employer is in compliance with the Act if the employer provides an employee with paid time off (PTO), which may include leave types other than sick, such as personal leave and vacation leave, so long as the PTO meets or exceeds all of the requirements in the Act.

Transitional Period

Generally, an employee is not eligible to use earned sick leave until the later of February 26, 2019, or the 120th calendar day after the employee commences employment, unless the employer permits the employee to use the earned sick leave earlier. After February 26, 2019 or the 120th calendar day after the employee commences employment, the employee may use earned sick leave immediately upon accrual or immediately at the time the earned sick leave has been advanced to the employee. However, where the employee has accrued earned sick leave prior to October 29, 2018, he or she is eligible to use that earned sick leave prior to February 26, 2019.

Payout & Carry Forward

Where the employer provides earned sick leave to its employee under the accrual method, the employer, in the final month of the employer’s benefit year, may provide an offer to an employee for payout of unused earned sick leave. The employee can accept a payout of all of the unused earned sick leave or one-half of the unused earned sick leave. If the employee declines a payout or accepts a payout of one-half of the unused earned sick leave, the employee is entitled to carry forward to the following benefit year any unused earned sick leave. However, the employer is not required to permit the employee to carry forward from one benefit year to the next more than 40 hours of earned sick leave.

Where the employer provides earned sick leave to its employees using the advancing method, the employer, in the final month of the employer’s benefit year, must either provide to the employee a payout for the full amount of unused earned sick leave or permit the employee to carry-over any unused earned sick leave, 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 earned sick leave. If the employer provides to the employee a payout for the full amount of unused earned sick leave, the employer may not use the accrual method with respect to that employee during the next benefit year.

Should unused earned sick leave be carried over to the following year, the employer is not required to permit the employee to use more than 40 hours of earned sick leave in any benefit year.

Unless an employer policy or collective bargaining agreement provides otherwise, an employee is not entitled to a payout of unused earned sick leave upon separation from employment.

Recordkeeping

Employers generally must maintain records to document hours worked by employees and earned sick leave accrued/advanced and paid out and carried over by/to employees. Such records must be retained by employers for a period of five years.

Notification

Employers must conspicuously post in a place accessible to all employees in each of the employers’ workspaces, the notification issued by the Commissioner of the Department of Labor and Workforce Development, which will include the amount of earned sick leave to which employees are entitled, the terms of its use, and remedies provided in the Act to employees if an employer violates the Act.

Employers who violate the Act may be subject to penalties. Please contact us with any further questions and to ensure compliance for October 29, 2018.