By: Jessica A. Burt
States and municipalities across the country are considering, and adopting, legislation requiring employers to provide paid sick leave. This legislation, generally aimed at assisting workers with low wages who may lack access to paid sick time, has been passed or is currently pending in at least 18 states, including: Alaska, Arizona, California, Florida, Hawaii, Illinois, Iowa, Maryland, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina and Washington.
Newark, New Jersey recently followed the trend, and passed its own Paid Sick Leave Ordinance. Beginning May 29, 2014, all private employers must provide paid sick time to employees who work in the City of Newark for at least 80 hours in a calendar year. The law is the second in the state of New Jersey, coming just months after Jersey City passed a similar ordinance. The key components of Newark’s Ordinance follow.
Employers with 10 or more employees working in Newark must provide up to 40 hours of paid sick time to each employee in a calendar year. Employers with fewer than 10 employees working in Newark must provide up to 24 hours of paid sick time to each Newark employee. This is a key distinction between Newark’s Ordinance and Jersey City’s Ordinance which requires employers with fewer than 10 employees in Jersey City to provide 5 unpaid sick days.
How Much Paid Sick Time is Provided?
Under the Ordinance, employees begin to accrue paid sick time on the first day of employment. Employees accrue one hour of paid sick time for every 30 hours worked, until they reach the relevant amount (24 or 40 hours). Employees may not use paid sick time until they have worked for their employer for at least 90 days. Employees are entitled to carry over accrued, but unused sick time to the next calendar year, but no more than 40 hours. If an employee is terminated, employers are not required to pay employees for any accrued, but unused sick leave under the Ordinance.
Employers with paid leave policies already in place that meet the total annual accrual requirements are not required to provide employees with additional paid sick time. Nothing in the Ordinance prohibits employers from offering a more generous paid sick time policy.
Use of Paid Sick Time Extends to Care of Family Members
Employees are permitted to use paid sick time for the medical diagnosis, care, or treatment of their own or their family member’s mental or physical illness, injury or health condition. Under the Ordinance, a “family member” includes (1) a biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, a child of a civil union partner, or a child to whom the employee stands in loco parentis; (2) a biological, foster, stepparent or adoptive parent or legal guardian of an employee or an employee’s spouse, domestic partner or civil union partner or a person who stood in loco parentis when the employee was a minor child; (3) a person to whom the employee is legally married under the laws of New Jersey or any other state or with whom the employee has entered into a civil union; (4) a grandparent or spouse, civil union partner or domestic partner of a grandparent; (5) a grandchild; (6) a domestic partner; (7) or a sibling.
Employees may also use paid sick time when their place of business, or their child’s school, is closed due to a public health emergency. Employers determine whether employees may use paid sick time in increments of less than one day.
Employers may request that employees confirm in writing following their use of paid sick time that the time was used for an authorized purpose. Employers may also require that employees provide documentation concerning their use of paid sick time if an employee uses it for three consecutive days or instances (if employees are permitted to use it for periods of less than 1 day). Where the need is foreseeable, employers may require employees to provide advance notice of their intention to use paid sick time, but cannot, under any circumstance, require employees to give more than 7 days’ notice.
Notice and Recordkeeping
Employers must give written notice to new hires regarding employee rights under the Ordinance. The notice must describe the right to paid sick time; the accrual rate; the amount of sick time provided; the right to be free from retaliation for properly requesting use of paid sick time; and the right to file a complaint or bring an action in municipal court if paid sick time is denied by the employer or the employee is retaliated against for requesting or taking paid sick time. The notice must be in English and the primary language spoken by the employee, so long as the primary language of the employee is also the primary language of at least 10% of the employer’s workforce.
Employers must also provide written notice to existing employees as soon as practicable and display a poster in a conspicuous and accessible place containing the information required in the notice. The poster must be in English and in any language that is the first language of at least 10% of the employer’s workforce. The Department of Child and Family Well-Being (the “Agency”) may create and make available to employers notices and posters, but it has not issued them yet. If no poster has been issued by May 29, 2014, employers should post their own notice in the workplace. Employers should also update paid time off and sick leave policies to ensure that they satisfy the requirements of Newark’s Ordinance.
The Ordinance also requires employers to keep accurate records of the hours worked and paid sick time taken by employees. The employer must allow the Agency access to the required records.
Finally, no matter where they operate, employers must keep an eye on local pending legislation regarding paid sick leave.