Citing the lack of paid sick time for private-sector workers and the goals of reducing health care expenditures and promoting a healthier and more productive workforce, the towns of Morristown and Plainfield, New Jersey, recently adopted ordinances that require private employers to provide paid sick time to employees. The Morristown ordinance (O-35-2016) took effect on October 4, 2016, and the Plainfield ordinance (MC 2016-08) took effect on July 15, 2016. Thirteen New Jersey municipalities have now enacted paid sick leave requirements: Bloomfield, East Orange, Elizabeth, Irvington, Jersey City, Montclair, Morristown, Newark, New Brunswick, Passaic, Paterson, Plainfield, and Trenton.
Coverage and Accrual of Benefits
Under the Morristown and Plainfield ordinances, employers that employ 10 or more employees in Morristown or Plainfield must provide those employees with up to 40 hours of paid sick time per year. Employers of fewer than 10 employees must provide up to 24 hours of paid sick time per year to such employees. However, childcare workers, home health care workers, and food service workers are entitled to up to 40 hours of paid sick time regardless of the number of employees employed by their employers.
To qualify for this benefit, an employee must work at least 80 hours in a calendar year for the employer. The definition of “employee” excludes government employees and employees who are members of a construction union and covered by a collective bargaining agreement. (Note that for union members who are not in a construction union, the ordinances will not apply until the expiration of a current collective bargaining agreement entered into before the effective date of the ordinance. At that point, the ordinances will generally apply unless expressly waived in the new labor agreement.)
Covered employees accrue paid sick time at the rate of 1 hour for every 30 hours worked. Exempt employees are assumed to work 40 hours each workweek, unless their standard workweek is less than 40 hours. Employees begin to accrue paid sick time on the first day of employment after the effective date of the ordinance and are entitled to use their accrued paid sick time beginning on the 90th calendar day (for Morristown) or 100th calendar day (for Plainfield) of their employment. Thereafter, employees have the right to use paid sick time as it accrues.
The ordinances allow employees to carry over a maximum of 40 hours of accrued but unused paid sick leave from one calendar year to the next; however, employers are not required to provide more than 40 hours of paid sick leave in a calendar year to any employee. In addition, employers are under no obligation to pay employees for accrued but unused paid sick leave at the time of an employee’s separation for any reason.
Use of Paid Sick Time
Under both ordinances, employees are entitled to use paid sick time for their own medical conditions or preventive medical care, as well as for the care of a “family member” (which includes biological, adopted, or foster children, stepchildren, parents, grandparents, spouses, domestic partners, civil union partners, and siblings). A covered employee may also use paid sick time under certain emergent circumstances such as when the employee’s place of business is closed due to a public health emergency or when his or her child’s school or place of care has been closed due to a public health emergency.
Employee Notice Requirements
An employer may require advance notice of no more than seven days when an employee’s need to use paid sick time is foreseeable. When the need for paid sick time is unforeseeable, an employer may require notice before the beginning of the employee’s shift or workday where possible, or as soon as practicable. An employer may require that an employee provide reasonable documentation that their use of paid sick time was for a purpose covered by the ordinance where the employee has used paid sick time for three consecutive days or three consecutive instances. In such instances, an employer may require documentation signed by a health care professional indicating that the paid sick time was necessary, but the employer cannot require that the documentation explain the nature of the illness.
Employer Notice Requirements
The Morristown and Plainfield ordinances both require that employers (1) provide written notice to each employee regarding the employee’s rights under their ordinance and (2) display, in a conspicuous and accessible location in each business establishment where employees are employed, a poster containing notice of the ordinance. The employee’s written notice and the poster must be in English and in any language that is the primary language of at least 10 percent of the employer’s workforce. The required notices for Plainfield are currently available online in English and Spanish, and the posters may be available upon request. The notices and posters for Morristown are not yet available.
Both ordinances also prohibit employers from retaliating against an employee for using accrued paid sick time or interfering with an employee’s exercise of rights granted by the ordinance. Retaliation includes threats, discipline, discharge, suspension, demotion, a reduction in hours, or any other adverse action.
Penalties for Violation
Both ordinances authorize a private right of action in Municipal Court, which may impose fines or penalties and may order restitution, reinstatement, or injunctive or declaratory relief. An employer that violates the Plainfield ordinance may be subject to a fine not to exceed $750 for each day that the employer violates the ordinance, as well as payment of restitution in the amount of any paid sick time unlawfully withheld. An employer that violates the Morristown ordinance may also be subject to a fine and payment of restitution in the amount of any paid sick time unlawfully withheld.
Employers with employees in Morristown and/or Plainfield should immediately take steps to ensure compliance with the paid sick time ordinances. Among other things, employers should prepare the required notices and posters and make arrangements to have them distributed and posted in appropriate locations. Human resources professionals who are responsible for employees in Morristown and/or Plainfield, and local managers and supervisors, should be alerted to the new laws and trained to deal appropriately with employees who seek to exercise their rights under the laws. Employers should also consider instituting appropriate administrative mechanisms to record the amount of paid sick time accrued by employees and to track the use of accrued paid sick time.