New Jersey and Westchester County Enact Paid Sick Leave Laws

November 16th, 2018 | By Jules Halpern Associates | Employment Law, New Jersey Law, New York Law, Sick Leave Laws

Paid sick leave laws seem to be spreading, and gaining in popularity. Earlier this year New Jersey became the tenth state to enact a paid sick leave law. The New Jersey law went into effect on October 29, 2018. In addition, Westchester County recently passed a paid sick leave law, which will go into effect on March 30, 2019. This article will provide a summary of both the New Jersey and Westchester County paid sick leave laws. Employers in New Jersey and Westchester County should review their sick leave policies to ensure that they comply with the legal requirements and incorporate the nuances of the laws.

New Jersey Paid Sick Leave Act

The New Jersey Paid Sick Leave Act (“NJPSL” or the “Act”) covers nearly all employees in the State of New Jersey, regardless of the size of the employer, including temporary help service firms and small businesses. The only New Jersey employees not covered by the NJPSL are: construction workers covered by a collective bargaining agreement; per diem health care employees; and public employees, who already receive paid sick leave under New Jersey law.

Under the Act, employees may use paid sick leave for any of the following reasons:

Time needed for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee;

Aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, or for preventive care;

Absences, treatment, counseling, and other matters resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence;

Closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of a determination that the presence in the community, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others; and/or

Time needed by an employee to attend a child’s school-related conference, meeting, function or other event requested or required by the school, or to attend a meeting regarding care provided to the child in connection with the child’s health conditions or disability.

Employees may begin using paid sick leave on the 120th day of employment, which will be February 26, 2019 for employees who are employed at the effective date. Under the Act, eligible employees accrue sick leave at a rate of one hour of sick leave for every 30 hours worked in a benefit year. A benefit year is defined as any period of 12 consecutive months, and may be established by the employer. Employers are not required to permit employees to accrue more than 40 hours of paid sick leave in a benefit year.

Under the NJPSL, employers may choose to “frontload” their employees paid sick leave, meaning that at the beginning of each benefit year, the employees would receive the full 40 hours of sick leave permitted.

If the employee is using the accrual method, an employee may carry over up to 40 hours of accrued but unused sick time into the following benefit year, or the employer may “pay out” the employee for his or her unused sick leave in the final month of the benefit year. Employees have the option to: (1) accept pay out of the unused sick leave; (2) decline the pay out and carry over the unused time into the following year; or (3) accept pay out for half of the unused sick leave and carry over the remaining earned sick leave into the following benefit year.

If the employer chooses to frontload the paid sick leave, the employer must either pay out the employee’s unused sick leave in the final month of the benefit year, or allow the employee to carry over any unused sick leave into the following benefit year.

Under the Act, employers may require employees to give up to seven calendar days’ advance notice for any foreseeable use of sick leave. In addition, the employer may also require employees to make a “reasonable effort” to schedule the use of their sick time in a manner that does not “unduly disrupt” the employer’s business. If the need to use leave is not foreseeable, the Act allows employers to require notice “as soon as practicable.”

Employers may require employees to provide medical or other reasonable documentation for earned sick leave in excess of three or more consecutive days. Employers must post a notice of employee rights under the Act in a conspicuous location in the workplace. Employers are also required to provide written notice of their employees’ rights under the Act. Further, employers must also track their employees’ hours worked, sick leave accrued, and sick leave used, and must maintain those records for five years, which must be made available for inspection upon a request from the New Jersey Department of Labor and Workforce Development.

Employers who violate the NJPSL may be sued by the affected employee(s) for actual damages suffered as a result of the violation, as well as an equal amount of liquidated damages.

Westchester County Earned Sick Leave Law

The Westchester County Earned Sick Leave Law (“ESLL”) requires employers, who have five or more employees, to provide up to 40 hours of sick leave per year to eligible employees. However, employers may grant eligible employees more than the required 40 hours at their discretion. The employees must be paid for their earned sick leave at their normal rate of pay.

Eligible employers are employees that have worked in Westchester County for more than 80 hours in a calendar year.

The sick leave is accrued at a rate of one hour for every 30 hours worked, or the employer may choose to frontload the earned sick leave by providing employees with 40 hours of sick leave at the start of each year. If the employer uses the accrual method, employees are permitted to carry over accrued but unused sick time to the following year. However, employees’ use of sick leave may be capped at 40 hours per year. The ESLL provides that employees may use sick leave in increments, with a “minimum of four hours” of sick leave.

Under the ESLL, earned sick leave may be used for the following reasons:

An employee’s mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment, or need for preventive medical care;

The care of a family member with a mental or physical illness, injury or health condition, who needs medical diagnosis, care, or treatment, or who needs preventive medical care;

The care of an employee or family member when it has been determined by public health authorities that the employee’s or the family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease; and/or

The closure of the employee’s place of business or a day care or elementary or secondary school attended by an employee’s child where such closure is due to a public health emergency.

The ESLL defines a family member as including an employee’s child, spouse, domestic partner(as defined by New York State law), parent, sibling, grandchild, grandparent; and the child or parent of an employee’s spouse, domestic partner or household member.

Under the ESLL, employers must provide employees both a copy of the paid sick leave law and “written notice of how the law applies to that employee” at the commencement of the employee’s employment, or within 90 days of the law’s effective date (by June 28, 2019), whichever is later. Employers must also display a copy of the ESLL and a poster in English, Spanish, and any other language deemed appropriate by the County, in a conspicuous location in the workplace. Employers must also document employees’ hours worked and earned sick leave accrued and used for a period of three years.

The ESLL provides employees with a private right of action for violation of the new law. Employees may recover the greater of $250 or three times the wages that should have been paid for each instance of undercompensated sick leave taken. Employees can also recover $500 for each instance in which employees have been unlawfully denied requested sick time. Employees may also recover back pay, reasonable attorneys’ fees, the costs of an administrative hearing, and other monetary or equitable relief.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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