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FAQ’s on New Jersey’s Paid Sick Leave Legislation

men-1979261__340-300x200New Jersey has joined nine other states and the District of Columbia in enacting a law to require that employers must provide their employees with paid sick leave.  The law is among the toughest in the nation, and imposes many new requirements on employers.  Below are some of the most frequently asked questions about New Jersey’s Paid Sick Leave Law.

 

What employers must provide paid sick leave?

Virtually all of them.

 

How much sick leave must employers provide to their employees?

Employers must provide their employees with 1 hour of paid sick leave for every 30 hours they work.

 

Can employees carry unused paid sick leave over to the next year?

Yes, but how much depends on the size of the employer.  Generally, employees can carry over 72 hours of sick time from year to the next.  “Small employers” (those with 10 or fewer employees), however, are only required to allow their employees to carry over 40 hours of paid sick leave.

 

Are these the maximums an employer can give its employers?

No. Employers are free to grant more generous paid sick leave. They just can’t provide any less.

 

What are the reasons for which an employee must be permitted to take paid family leave?

The Law specifically states that:

An employer shall permit an employee to use the earned sick leave accrued pursuant to this act for any of the following:

(1)   Time needed for diagnosis, care, or treatment of, or 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 due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence, if the leave is to allow the employee to obtain for the employee or the family member: medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence; services from a designated domestic violence agency or other victim services organization; psychological or other counseling; relocation; or legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic or sexual violence; or

(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.

 

Can an employer require its employees to give advance notice before using paid sick leave?

Sometimes.  If the use of the leave if “foreseeable,” then the employer can require the employee to give advance notice of no more than seven days prior to the use of the leave.  If the use is unforeseen, the employer can only require the employee to give notice “as soon as practicable.”  Also, if the leave is foreseeable, the employee can be required to “make a reasonable effort” to schedule the time off so that it does not “unduly disrupt the operations of the employer.”

 

Can an employer require an employee to document the reasons for the leave?

Yes, but only if the leave will be three consecutive days or more.  However, it is important to remember that medical and much family information is required to be kept by law confidential, and so the employer must make sure that the information and documentation is kept private.
Can an employer which meets the requirements of the paid sick leave fire an employee who exceeds its limits?

It depends.  If the employee is abusing paid sick leave, such as using it for other purposes, or lying about an illness, then yes.  However, if the employee actually has a medical, psychological or familial issue, the employer may be required to give even more time off as a reasonable accommodation or unpaid sick leave under other laws, such as New Jersey’s Law Against Discrimination (the “NJLAD”), the Americans with Disabilities Act (the “ADA”), or the Family and Medical Leave Act (the “FMLA”).  These are often case by case calls.  Also, an employer cannot use abuse of paid family leave as an excuse to fire or otherwise discipline an employee for a discriminatory reason, or because the employee objected to an illegality.  Such acts would violate the NJLAD, Title VII of the Civil Rights Act of 1964 (“Title VII”), and New Jersey’s Conscientious Employee Protection Act (“CEPA”).

 

Can an employer take actions to discourage employees from using paid sick leave?

No.  Retaliation for the use of paid sick leave is prohibited and can open the employer up to significant fines, penalties and lawsuits.  Indeed, the Law creates a “rebuttable presumption” that any time an employer takes an “adverse action” against an employee who has complained or cooperated with the investigation of possible paid sick leave violations within the last 90 days, it is in retaliation for the objection or cooperation.  However, an employer may offer to pay an employee for some or all of her accrued but unused paid sick leave.  The choice shall be up to the employee, and she may carry over any unpaid sick leave.

 

What happens if my business fails to comply with the paid sick leave law?

Again, the ramification can be severe, including significant fines, penalties and lawsuits.  The penalties are similar to those other wage and hour law violations, except that they may have the additional remedy of double damages.

 

Is the employer required to maintain records?

Yes, employers are required to  maintain records of hours worked and sick leave taken for 5 years.

 

What time period is used for calculation of accrued sick leave?

12 months, beginning 90 days after the employee is hired.

 

Are there sign posting requirements.

Yes. The New Jersey Department of Labor and Workforce Development is developing posters about the law which are required to be displayed in the workplace.  Once prepared, the posters should be posted on the New Jersey Department of Labor and Workforce Development should be posted on website, here.

 

Can you help?

Yes.  Our employment attorneys help employers comply with their regulatory requirements, and represent employers and employees on a wide range of issues.  Call us at (973) 890-0004 or email us to set up a consultation with one of our attorneys.