On March 22, 2018, the Appropriations Committee of the New Jersey Assembly took steps to advance a bill (A1827) that sets minimum paid sick leave requirements for employers in the state. Similar to the 13 New Jersey municipal paid sick leave ordinances that have arisen in recent years, the bill would allow employees to accrue one hour of paid sick time for every 30 hours worked. For small employers with fewer than 10 employees, the accrued paid sick leave and carry forward threshold is capped at 40 hours. For employers with 10 or more employees, the accrual and carry forward threshold is increased to 72 hours of paid sick time.
The bill sets forth three categories of permissible use of the paid sick time: (i) the diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury; (ii) an absence because of a public health emergency declared by a public official that causes the closure of the employee’s workplace or the school or childcare facility of the employee’s child or requires the employee or an employee’s family member to seek care; or (iii) a necessary absence for medical, legal or other victim services because of domestic or sexual violence perpetrated on the employee or the employee’s family member. Notably, however, upon mutual consent of the employee and the employer, an employee may voluntarily choose to work additional hours or shifts during the same or following pay period instead of using their earned sick leave.
Under the bill, a family member is broadly defined to include an employee’s child, spouse, domestic partner, civil union partner, parent (including adoptive, foster or step-parent, or legal guardian), sibling (including foster or adoptive siblings), grandparent or grandchild, and the parent, grandparent or sibling of the employee’s spouse, domestic partner or civil union partner. If an employee does not have a spouse, domestic partner or civil union partner, then the employee has the opportunity to designate annually a person for whom they can use their sick leave.
Under the bill, an employer may only require advance notice within a week before the use of sick leave, where the need for the leave is foreseeable. Where the need is unforeseeable, an employer may only require notice as soon as practicable. Additionally, documentation of need for the leave may only be requested if the absence is of three or more consecutive days.
At the end of the benefit year, the bill would require employers to pay employees for their accrued unused time. Employees have the option to accept payment for the full amount or elect to receive payment for half of the sick leave and to carry the remaining time over to the following benefit year. Employers are not obligated under the bill to pay accrued unused sick leave upon the termination of employment.
The bill’s retaliation provision prohibits discipline, demotion, discharge or any adverse employment action for the use of request to use sick leave and, further, creates a rebuttable presumption of unlawful retaliation whenever an adverse action is taken against an employee within 90 days of the employee’s protected activity.
The bill has not yet passed the New Jersey Assembly or Senate, and could still be amended before a vote in the legislature. If the legislature passes the bill and Governor Phil Murphy signs it, the new law would become effective 120 days thereafter. Since the bill is not yet law, employers need not take any action to modify their policies at the moment. However, the proposed legislation provides an opportunity for employers to evaluate current sick leave policies against its provisions.
Client Alert 2018-079
