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New Jersey Sick Leave Law Became Effective October 29, 2018– Are you Compliant?

On May 2, 2018, the governor of New Jersey (“NJ”), Phil Murphy, signed into law the New Jersey Sick Leave Act (the “Act”), a mandatory paid sick-leave law, becoming the tenth state to do so. Employees have the right to take an occasional sick day without losing pay. The Act, effective October 29, 2018, impacts all employers of NJ and requires employers to provide one hour of sick leave for every thirty hours worked, up to forty hours of paid sick leave per year to covered employees. The act supersedes any individual town ordinances.

What is it? Current employees began earning (or accruing) sick time on October 29, 2018 and employees hired after this date begin to accrue sick time on the first date of employment. Employers should have determined their benefit year of 12 consecutive months. Once the benefit year is determined, it cannot be changed unless the NJ Department of Labor (“NJ DOL”) and Workforce Development is informed. Employees began accruing one hour of sick time for every thirty (30) hours worked, with a maximum of forty (40) hours for the year. Employers with existing policies, such as paid time off, personal days, vacation days and sick-days, may be able to satisfy the requirements of the act as long as employees can use the time off as required by the law.

Applies to all employers! The Act applies to any business entity in NJ with one or more employees. With the exception of public employers who are already required to provide their employees with full pay for sick and leave.

What is covered? Employees can use accrued sick time after the 120th day of their first date 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;
  • Care for a covered family member;
  • Circumstances relating to an employee or their family member being a victim of domestic or sexual violence;
  • Closure of a school/childcare facility of an employee’s child as a result of a public official’s order due to a public health emergency; or
  • School-related meeting to discuss child health condition or disability.

What proof does an employee need for using their sick time? 

  • Foreseeable absence: If an employee knows they will be out in the future, the employer may require advance notice, not to exceed seven calendar days, of the intention to use the leave and the expected duration. Employers may require employees to make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt the operations of the employer. Employers may prohibit employees from using foreseeable sick leave on certain dates, and require reasonable documentation if sick leave that is not foreseeable is used during those dates.
  • Unforeseeable absences: Employers may require employees to give notice of the intention to use the leave as soon as practicable.
  • If an employee is absent for at least three consecutive days, the employer may require documentation that confirms that the employee used sick leave for a covered purpose.

How much? The dollar amount paid is based on the rate of pay that the employee earns at the time of the payment. If an employer frontloads the entire amount of sick time (gives the employee 40 hours at the start of the benefit year), they must either pay the employee for the full amount of any unused accrued sick time in the final month of the employer’s benefit year or carry forward any unused sick time to the next benefit year.

What do you need to do as an employer?

  • You 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 has issued a model notice and each time thereafter when an employee is hired or requests such a notice.
  • Employers may not require an employee to find a replacement to cover the employee’s absence.
  • Recordkeeping- this is perhaps the most important area. This will be one area where many employers will have to change their current procedures. Besides the need to track and accumulate hours for each employee, employers must retain records documenting the hours worked by employees and paid sick time taken by employees for a period of five years. The Department of Labor will be permitted access to those records.
  • Do not retaliate against employees for using time. Employers may not take retaliatory or discriminatory action in connection with an employee’s request or use of earned sick leave.
  • Employers are not required to allow employees to use more than 40 hours of sick leave in a benefit year.
  • Handbooks – You should consider revising your employee handbooks to account for these changes.

Employees covered under a Collective Bargaining Agreement- If you have employees who are covered by a collective bargaining agreement that was in effect on October 29, 2018, at least until the agreement expires, these employees are not considered covered employees. Even after expiration of the agreement, employees or their representatives may waive the rights under the act during negotiation of a new agreement.

Important to Note: Employees may sue their employers for violating the act and can seek actual damages suffered as a result of the violation, plus an equal amount of liquidated damages.

Employers should have implemented this policy and be prepared to administer sick leave policies in their daily business. Please reach out to WithumSmith+Brown, PC with any questions.

Authors: Lisa Morgan, CPA, Partner  |  lmorgan@withum.com  and  Lauren Naples, CPA, MBA, PSA  |  lnaples@withum.com 

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