The New Jersey legislature is like one of those houses that give healthy snacks or tooth brushes on Halloween. On October 29th, just in time for trick-or-treating, the Earned Sick Leave law becomes effective. Boo! Passed in April, the law applies to all employers regardless of size and provides that employees are entitled to up to 40 hours of paid sick time in a 12 month benefit year. Under the law, our thoughtful and generous legislature allows employers to set the benefit year as any 12 month period, and either have employees accrue the sick time at a rate of 1 hour for every 30 worked or at its option. Employers can also front load the sick days and waive accrual to save the administrative headache. And if that doesn’t get you excited, employers can define the increments in which the sick time can be used, which can be critical when it comes to part-time employees.

Employers must allow employees to use the earned sick leave for the following reasons:

  • Their own mental or physical condition, including preventative care, diagnosis, treatment or recovery;
  • A family member’s mental or physical condition, including the same as above;
  • Their own or a family member’s health or legal issues if a victim of domestic or sexual violence;
  • Time off if work or a child’s school is closed by public officials for health reasons;
  • To attend school meetings and functions.

Because the law broadly defines “family member” as anyone “whose close association with the employee is equivalent of a family relationship,” you can tell your poker buddies that you’ll be there for them. The Department of Labor recently issued proposed regulations which are supposed to clarify the law. The draft regs further define family member as any person with whom the employee has a significant personal bond that is, or is like, a family relationship, regardless of biological or legal relationship. There, that helps.

Employers can require 7 days’ notice for foreseeable leave and employees must make a “reasonable effort” to schedule time off so as not to “unduly disrupt” operations. But the use of earned sick leave cannot be counted as an “absence” under an attendance policy, the violation of which can result in discipline. Employees have a right to sue for violations of this new law and if successful, will receive 2 times the sick pay to which they were otherwise entitled.

Other relevant features of the law are:

  • New employees start to accrue sick leave immediately, but have a 120 day wait period before they can use it, if that’s what the employer’s policy provides;
  • Current employees start to accrue on 10/29, but will also have to wait 120 days if the policy requires it;
  • Employers must allow carry over up to 40 hours of unused days, but do not have to let an employee use more than 40 in a year and have no obligation to pay out upon separation;
  • Employers can require documentation for leave of 3 or more consecutive days;
  • You must post and hand out a notice of rights to each current employee and all new hires (the link is below);
  • New recordkeeping burdens include, all hours worked and sick days accrued and used which must be retained for 5 years unless you grant the 40 hours up front.

Every employer will need to decide on the “benefit year,” prior to October 29. Once set, the proposed regulations establish a nightmare process to change the benefit year requiring consent by the Commissioner of Labor. Employers must also decide on whether to use the accrual or front loading method and the increments in which it will allow leave to be used. Keep in mind that these days may also run concurrently with FMLA time. Get ready for even more chaos.

We’ve heard from a lot of you about whether you can mush together existing vacation and personal time with sick, so as not to increase the total amount of paid time off. The answer is yes. We can prepare a policy incorporating those determinations, outlining permissible uses of leave, the notice requirements for foreseeable and unforeseeable leave, and for providing supporting documentation. The treat is more time with your favorite employment lawyers!

Here is the ESL notice:

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