Paid sick leave laws are going viral. On the heels of New York City’s passage of a paid sick leave ordinance in June, Jersey City enacted a similar ordinance (“Ordinance”) in September. The Ordinance goes into effect January 24, 2014.
While Jersey City is the first city in New Jersey to enact such an ordinance, several other cities and the state of Connecticut have already enacted paid sick leave legislation. A New Jersey statewide effort and one in Newark are also in the works. Municipalities are increasingly passing legislation related to employment issues. Employers must be sure they are aware of legislation on all levels – federal, state, and local.
As with other paid sick leave laws, the Ordinance is very detailed. What follows is a summary of some of the key issues.
Who Must Provide Leave and Who Receives It
The Ordinance applies to private employers operating a business in Jersey City. If the employer has ten or more employees, the sick leave must be paid. Employers with fewer than ten employees must provide sick leave, but it need not be paid. Sick leave must be provided to employees of a franchise or business owner located in Jersey City, but only if the employee works in Jersey City for at least 80 hours in a year.
Accrual and Usage
Employees who work in Jersey City at least 80 hours per year accrue one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year. For an exempt employee, the number of hours worked is the hours worked in a normal work week or 40 hours per work week, whichever is less.
Accrual begins on the first day of employment, but employees are not entitled to use their sick time until the 90th calendar day of employment. If an employer has a paid time off policy sufficient to cover the annual accrual requirements of the Ordinance, the employer does not need to provide additional time.
Employees may use sick time for illness or preventive medical care for themselves or a family member. Sick time may also be used in certain public health emergencies. Sick time must be granted even if the request is oral. The employer cannot require the employee to search for a replacement. Sick time can be used in hourly increments or the smallest increments the payroll system uses to account for other absences. An employer can request a doctor’s note if an employee uses sick time on more than three consecutive days.
Sick time must carry over from one calendar year to the next, but the employer does not need to allow more than 40 hours to carry over nor does it need to allow the use of more than 40 hours in a year. Employers are not required to pay out unused sick time upon separation.
Employers must keep records for three years showing the hours worked and paid sick time taken. Failure to do so creates a rebuttable presumption that the employer violated the Ordinance.
Non-Retaliation
An employer may not retaliate against an employee for exercising rights under the Ordinance, including requesting or using time, complaining about violations, and informing people of their potential rights under the Ordinance. The Ordinance creates a rebuttal presumption of unlawful retaliation if an employer takes an adverse action against an employee within 90 days of certain protected activities under the Ordinance. This could be a problem, as some of the protected activities are very broad, such as informing someone about his or her potential rights under the Ordinance. If courts interpret this provision as written, if an employee is fired 89 days after telling another employee that she can take a sick day, the employer will have an uphill battle in proving the termination was for some other reason. Time will tell how this provision is interpreted.
Additional Provisions
The Ordinance includes notice and posting requirements. The Department of Health and Human Services will issue the notice and poster in several languages. The poster must be displayed in each establishment with employees and must be posted in English as well as any language spoken by at least 10% of the employer’s workforce, as long as a poster has been published in that language. Employers who fail to comply with these provisions face civil fines for each employee or establishment not given a notice. Penalties for other violations of the law include fines and/or community service for up to 90 days. Individuals have a right to sue in court for violations.
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Brody and Associates regularly advises management on complying with the latest local, state, and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
