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Jersey City Enacts Paid Sick Leave Ordinance; Other Proposed Sick Leave Legislation Affecting New Jersey Employers

January 6, 2014

Jersey City Enacts Paid Sick Leave Ordinance

On September 25, 2013, the Jersey City Council passed a paid sick leave ordinance requiring employers within the city limits to provide earned sick days to its employees. Under the new Jersey City law, employers with 10 or more employees are required to provide a minimum of one hour of paid sick time for every 30 hours worked by an employee, up to 40 hours (or 5 work days) per year. Employers with less than 10 employees are similarly obligated to provide earned sick time to its employees at the same accrual rates as larger employers, although such earned sick time may be unpaid.

In order to be eligible to earn sick leave, an employee must work within Jersey City and have worked for at least 80 hours in a calendar year. In fact, even part-time and temporary employees are eligible to earn paid sick leave time under this new law. Once earned, an employee may use earned sick time for:

  • An employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or an employee’s need for preventive medical care;
  • Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or care of a family member who needs preventive medical care; and
  • Closure of the employee's place of business by order of a public official due to a public health emergency or an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.

Sick time must be provided upon the employee’s “oral request” – an employer is prohibited from requiring that an employee provide written notice requesting sick leave. An employee must give the employer notice of the need to use sick time “as soon as practicable.” Sick time may be used in the smaller of either (a) hourly increments or (b) the smallest increment that the employer’s payroll system uses to account for absences or use of other time.

If an employee is absent for three or more consecutive days, an employer may require “reasonable” documentation that the sick leave was used for a permissible purpose, including documentation signed by the health care provider indicating that the paid sick time was necessary. However, an employer cannot require that the documentation explain the nature of the illness. An employer is similarly prohibited from requiring the disclosure of details relating to an employee’s (or the family member’s) medical condition as a condition of providing sick time. Any health information that an employer receives about an employee or his/her family member obtained solely for the purposes of utilizing sick time must be treated as confidential and not disclosed except to the employee or with the employee’s permission.

Accrued but unused sick time must be carried over to the following calendar year. However, an employer is not required to carry over more than 40 hours from year to year, and may limit employee use of accrued sick time to just 40 hours in a given year. This new law does not require employees to be paid for unused sick time upon termination of employment.

If an employer already has a paid time off policy that provides an amount of paid leave sufficient to meet the Ordinance’s annual accrual requirements and allows employees to use the time for the same purposes and under the same conditions as provided under the Ordinance, an employer is not required to do anything else. However, the Ordinance does have notice posting and distribution requirements with which all covered employers are required to comply.

Aggrieved employees have the right to file a complaint with the Jersey City Department of Health and Human Services as well as to bring a private right of action against the employer in a court of law. Employers who have violated the Ordinance will be subject to a maximum penalty of a fine of up to $1,250 and/or a period of community service not exceeding 90 days per each individual infraction, to be determined in the discretion of the court.

The Jersey City Ordinance goes into effect on January 23, 2014 or upon the expiration of the current collective bargaining agreement for those employees subject to a collective bargaining agreement.

Other Proposed Sick Leave Legislation Affecting New Jersey Employers

Immediately after the enactment of the Jersey City Ordinance, on October 29, 2013, the Newark City Council voted unanimously to introduce a paid sick leave ordinance, which would entitle employees in Newark to earn one hour of sick time for every 30 hours worked, up to (a) 40 hours per year for employers with 10 or more employees, and (b) 24 hours a year for employers with less than 10 employees. The proposed Newark Ordinance would permit an eligible employee to use accrued paid sick time to take care of the employee’s own physical or mental illness or injury, to care for a family member’s health condition, to care for a child whose school or daycare has been closed due to a public health emergency, or when their own place of business has been closed due to a public health emergency.

On the state-wide level, the New Jersey Earned Sick Leave Bill, A-4125 was introduced in the New Jersey Assembly on March 20, 2013, which would require all employers in New Jersey to provide paid sick leave to eligible employees. Under the state bill, every employer would be required to provide earned sick leave to each employee working for the employer in New Jersey. Employees would accrue one hour of sick leave for every 30 hours worked. Employees would be permitted to accrue, and carry over from year to year, up to a maximum of 72 hours of paid leave at any one time. This number would be reduced to a 40-hour maximum for small employers, which is defined as those with less than 10 employees during the preceding calendar year. However, an employer would not be required to pay out earned but unused sick leave at the time of separation from employment, unless the employer’s policies or contractual agreements require such payments.

As of December 2013, seven jurisdictions have enacted paid sick leave laws: in addition to New York City and Jersey City, the State of Connecticut, the City of San Francisco, Washington, D.C., Seattle, Washington and Portland, Oregon have all implemented mandatory paid sick leave laws. Accordingly, employers with operations across New Jersey and around the country will need to keep apprised of these statutory employee entitlements and enact appropriate policies that meet the varying requirements of the different jurisdictions.

For more information, please contact:

Catherine P. Wells, Member of the Firm
(973) 530-2051 | cwells@wolffsamson.com

Margaret O’Rourke Wood, Member of the Firm
(973) 530-2063 | mwood@wolffsamson.com

Denise J. Pipersburgh, Associate
(973) 530-2090 | dpipersburgh@wolffsamson.com