Jersey City recently joined a growing list of jurisdictions across the country to adopt mandatory paid sick leave for workers. Beginning January 24, 2014, Jersey City employees will earn up to 40 hours of sick leave each year. The leave will be paid or unpaid, depending on the size of the employer. The ordinance must be signed by Mayor Steven Fulop, but he has already indicated his support for it.
Accrual of Sick Leave
Under the ordinance, employees will accrue 1 hour of sick leave
for every 30 hours worked. Exempt employees are assumed to work 40
hours per week for accrual purposes. Employees would be permitted
to accrue, and carry over from year to year, up to a maximum of 40
hours of sick leave at any one time. Employees will not be entitled
to use more than 40 hours in any calendar year.
Individuals who work for employers with 10 or more employees will
accrue, and be eligible to take, paid sick leave. Employers with
less than 10 employees would only be required to provide unpaid
sick leave. The ordinance requires paid sick leave to be
compensated at the employee's normal rate of pay or the State
minimum wage rate, whichever is greater.
Employers who already provide leave on terms at least as generous
as those required by the ordinance do not have to provide
additional sick leave. Additionally, the ordinance will not apply
to employees currently covered by collective bargaining agreements
until such agreements expire.
Eligibility for Sick Leave
The ordinance applies to employers "that operate[] as a
business in Jersey City" and defines employee to include any
individual who works at least 80 hours in a year in Jersey City. It
does not, however, apply to public employees.
Employees will begin to accrue leave immediately upon commencement
of employment but are not eligible to take leave until the
90th calendar day of their employment.
Employees would be permitted to use the leave for their own illness
or medical treatment, as well as for that of a family member. The
ordinance defines "family member" expansively to include
the employee's children (including step, adopted, foster, and
in loco parentis relationships), parents, spouse,
grandparents, grandchildren, and siblings, as well as a spouse or
domestic or civil union partner of the employee's parent or
grandparent. The ordinance also makes clear that the term spouse
includes anyone to whom the employee is legally married in New
Jersey or any other state.
Employers can only require notice of the need to use sick leave
that is given "as soon as practicable." Oral requests for
leave are sufficient. Furthermore, the ordinance prohibits
employers from requiring employees to find replacement coverage as
a condition of using the leave.
Employees can take leave in increments of as little as 1 hour or
less if the employer records time in its payroll system in smaller
increments.
An employer would not be required to pay out earned but unused sick
leave at the time of separation of employment, unless the
employer's policies or contractual agreements require such
payments. However, the ordinance provides the employees who
transfer between entities or locations for one employer can carry
over accrued leave. Additionally, employees who are terminated and
rehired within 6 months would have their accrued leave
reinstated.
Documentation and Notice
Employers will be permitted to require documentation from the
employee to substantiate a leave of absence longer than 3
consecutive days. However, the ordinance makes clear that the
documentation need only be a statement by a health care
professional "indicating that paid sick time is
necessary." The employer cannot require that the documentation
"explain the nature of the illness," and it must treat
any documentation received as confidential.
Employers are required to maintain documentation regarding
employees' work hours and paid sick time taken for 3
years.
Employers will also be required to provide employees with notice of
the ordinance and post information about it conspicuously in the
workplace. The form of the notice and poster will be issued by
Jersey City's Department of Health & Human Services.
Prohibition Against Retaliation
The ordinance also prohibits retaliation and/or discrimination
against an employee who uses leave or complains about an employer
who engages in misconduct with respect to the leave entitlement.
Employers are prohibited from taking any adverse action against an
employee because of the employee's use of sick leave.
The ordinance provides for fines or community service to be imposed
against employers who violate the provisions of the ordinance.
Aggrieved employees will also be permitted to file a lawsuit to
protect their rights under the ordinance. It is unclear what
damages may be available to employees, other than the fines
provided under the ordinance.
Bottom Line
The ordinance is similar to a bill introduced in the New Jersey Assembly in May 2013, but that ordinance has yet to gain traction in the legislature. Employers with employees in Jersey City should consult with counsel to assist in implementing or amending sick leave policies.
Originally published on the Employer's Law Blog
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
