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.
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.