Following a trend in other parts of the country, cities in New Jersey continue to enact and broaden their paid sick leave laws at a municipal level. Employers with employees working in New Jersey must be mindful of these possible variances in paid sick leave laws. On October 29, 2015, the City Council of Jersey City, New Jersey voted to amend its paid sick leave ordinance to broaden its scope. Then on November 3, 2015, voters in Elizabeth, New Jersey voted to require private employers to require paid sick leave, to be effective on March 2, 2016. Eight other New Jersey cities currently have some form of paid sick leave laws (Bloomfield, East Orange, Irvington, Montclair, Newark, Patterson, Passaic and Trenton).
Jersey City’s Expansion of Paid Sick Leave Protection
The Jersey City amendments to its paid sick leave ordinance will now require employers with less than 10 employees to provide up to 24 hours of paid sick leave per year. Also, after an employee exhausts his or her 24 hours of paid sick leave, the employee must be permitted to use up to an additional 16 hours of unpaid sick leave per year. Employers with less than 10 employees are prohibited from requiring that their employees use their unpaid sick leave before using their paid sick leave.
Regardless of size, employers who have employees working as child care workers, health care workers or food service workers, must provide up to 40 hours of paid sick leave per year for those employees. However, employers subject to collective bargaining agreements may obtain waivers of paid sick leave time if the waivers are clear and unambiguous.
The maximum fines for violating the ordinance have also been increased from $1,250 to $2,000.
Elizabeth’s Paid Sick Leave Ordinance for Private Employers
Elizabeth’s paid sick leave ordinance applies to all private employers, regardless of size, although employees covered by a collective bargaining agreement may waive the protection in the agreement. Employers with 10 or more employees are required to provide up to 40 hours of paid sick leave per year for employees working 80 hours or more per year in the city. Employers with less than 10 employees must provide up to 24 hours of paid sick leave per year per employee. Regardless of size, employers of child care workers, home health care workers, and food service workers are required to provide up to 40 hours per year of paid sick leave.
Under Elizabeth’s ordinance, paid sick leave accrues at a rate of one hour for every 30 hours worked. An employee may not take paid sick leave until their 90th day of employment. Employees may carry over up to 40 hours of unused, accrued sick leave time per year, but may not use more than 40 hours in a single calendar year. An employer may pay the employee for the unused, accrued sick time to avoid a carry over. However, the employer is under no obligation to pay for unused sick leave time upon the termination of employment.
If an employer already has a paid sick leave policy, it may continue to use it, provided that it affords the employee with at least the minimum protections provided under the ordinance.
An employee may use sick leave time for their own or their family member’s medical diagnosis, care or treatment of any mental or physical illness, injury or health condition. In addition, the time may also be used for the closure of the employee’s place of business, or to care for a child whose school or place of child care has been closed, by order of a public official due to a public health emergency. Finally, the paid sick leave may also be used to care for a family member who has been determined by health authorities or a health care provider to jeopardize the health of others due to exposure to a communicable disease.
The ordinance also includes notification, posting and record-keeping requirements. An employer must provide each employee with written notice of their rights under the ordinance at the commencement of employment, or as soon as practicable on or after the effective date. Employers must display a poster containing notice of the ordinance in a conspicuous and accessible place at the employer’s business. The notice must be in English or any other language that is the primary language of more than 10 percent of the workforce. The employer must allow the Elizabeth Department of Health and Human Services reasonable access to records documenting the hours worked by an employee and the amount of paid sick leave taken. A failure to maintain or retain such records results in a rebuttable presumption that the employer has violated the ordinance.
Finally, an employer is prohibited from interfering with, restraining or denying an employee any right under the ordinance or retaliating against the employee for exercising his or her rights thereunder. If the employer violates the ordinance, they are subject to a maximum fine of $1,250 for each day a violation occurs, and may be subject to paying restitution to the employee.
The takeaway is that it is important for employers to know that individual paid sick leave laws exist at a municipal level in New Jersey, and to be familiar with the requirements of each. Employers are encouraged to review their sick leave policies to make sure that they are current and reflect these municipal variations. Employers may need to update their policies and record-keeping requirements to make sure that paid sick leave is both tracked and credited. Employers may also need to train their supervisors working in the various cities in New Jersey that have enacted paid sick leave ordinances to make sure that they are aware of and familiar with the requirements.