Paid Sick Leave Comes to New Jersey’s Second Largest City – Jersey City; is Newark, its Largest City Next?
Written by David Katz
On October 21, 2013, Jersey City Mayor Steven Fulop signed into law the Paid Sick Time Ordinance requiring private sector Jersey City employers with 10 or more employees to provide up to five days of paid sick leave per year to those employees. Jersey City joins New York City (our coverage of New York City’s recently enacted Earned Sick Time Act can be found here), San Francisco, Seattle, Portland, Washington, D.C. and the state of Connecticut in enacting a paid sick time law. Newark – New Jersey’s largest city – is expected to follow suit in passing a similar bill, perhaps as soon as next week.
The Jersey City Ordinance goes into effect on January 24, 2014 – just three months from now – for all covered employers, except for those that will be covered by a collective bargaining agreement as of that date. And in those cases, the Ordinance takes effect upon the termination of such collective bargaining agreement. The full text of the Ordinance is available, but here are the top 20 highlights:
- Private sector employers with 10 or more Jersey City employees must provide those employees with a minimum of 1 hour of paid sick leave for every 30 hours they work, up to a maximum of 40 hours of sick leave per year, which equates to a 5-day sick leave maximum.
- The rules are the same for employers with less than 10 Jersey City employees, except the sick leave may be unpaid.
- A person is considered an “employee” under the Ordinance if he or she is a full-time, part-time or temporary employee who works in Jersey City for at least 80 hours per year.
- Employers that already provide at least 5 days of any kind of paid time off (i.e., personal days, vacation and, obviously, sick leave) would not be required to provide any additional sick time, either paid or unpaid, under the Ordinance, provided that the employee can use that time for the same purposes and under the same conditions as sick time under the Ordinance.
- Employees can carry over accrued sick time to the following calendar year, subject to the 40-hour cap.
- There is no requirement to pay out accrued but unused sick time upon termination. However, if an employee is rehired within 6 months of separation, the employee is entitled to reinstatement of his or her previously unused accrued sick time.
- Employees can use sick time to care for their own illness or medical condition or that of a family member, among other things.
- Accrued sick time may be used in the smaller of: (A) hourly increments; and (B) the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
- Employees who are exempt from overtime under the FLSA are assumed to work 40 hours per workweek for purposes of sick time accrual unless their normal work week is less than 40 hours, in which case sick time accrues based on the hours the employee works in a normal workweek.
- An employee begins to accrue sick time at the commencement of employment (or on January 24, 2014 for existing employees), and can begin using accrued sick time starting on the 90th day of his or her employment (or on the 90th day following the effective date of the ordinance for existing employees).
- Accrued sick time transfers over to a successor employer.
- At its discretion, an employer may loan sick time to an employee in advance of accrual.
- An employer may require an employee who has taken sick leave for more than 3 consecutive days to provide reasonable documentation that time has been used for a permissible purpose. However, employers may not require that the documentation explain the nature of the illness. In fact, employers are prohibited from requiring disclosure of details relating to an employee’s or an employee’s family member’s medical condition as a condition of providing paid sick time under the Ordinance.
- Employees need only make oral requests sick time, and employees must provide employers with notice of the need to use sick time as soon as practicable.
- Employers cannot require an employee to search for or find a replacement worker as a condition to taking sick time.
- It is unlawful for an employer’s absence control policy to count sick time taken under the Ordinance as an absence that may lead to or result in discipline, discharge, demotion, suspension or any other adverse action.
- Employers cannot interfere with, restrain or retaliate against an employee for exercising his or her rights under the Ordinance. The Ordinance creates a rebuttable presumption of unlawful retaliation when an employer takes adverse action against an employee within 90 days of when the employee files a complaint, informs another person about an alleged violation, cooperates in an investigation or prosecution of any alleged violation, opposes any unlawful policy or practice under the Ordinance or informs any person about his or her potential rights under the Ordinance.
- Aggrieved employees may file a complaint in court or with the Jersey City Department of Health & Human Services. Filing with the Department is neither a prerequisite nor a bar to a private action. The maximum penalty for violating the Ordinance is a fine of up to $1,250 and/or community service of up to 90 days for each individual infraction.
- The Ordinance also has notice and posting requirements. Specifically, employers must provide individual written notice to employees regarding their rights under the Ordinance at the commencement of their employment (or as soon as practicable after January 24, 2014 for existing employees). These notices must be in English and in the primary language spoken by the employee provided that the Department has made available a translation into such language. Employers must also display a poster in a conspicuous and accessible location in the workplace regarding employees’ right to sick time. The poster must be in English and in any language that is the first language of at least 10% of the employer’s workforce provided that the Department has made available a translation into such language. The Department is currently creating individual notices and posters (in English, Spanish, Italian, Chinese, Polish, Portuguese and Tagalog) that will be made available to employers. Employers that violate the notice and posting requirements are subject to a $100 civil fine for each employee that was not given notice and $500 for each location in which the poster was not displayed.
- Employers are required to retain records for 3 years documenting hours worked by employees and sick time taken by employees.
Accordingly, employers with employees in Jersey City (and likely Newark in short order) should immediately review their sick leave policies to ensure compliance with the minimum requirements of the Ordinance, which again will take effect on January 24, 2013.