In an effort to decrease public and private health care costs and promote preventive health services by enabling workers to seek early and routine medical care for themselves and their family members, Jersey City, New Jersey, has enacted a City Ordinance mandating that all private employers in the city provide their employees with paid or unpaid sick time. Ordinance No. 13097 will take effect on January 23, 2014 (120 days after date of enactment), or at the expiration of current collective bargaining agreements for those employees working under such agreements. Jersey City is the first city in New Jersey and the sixth city nationwide to enact such legislation.
Who Must Provide Sick Time?
All employers employing at least 10 employees in Jersey City must provide paid sick time to any employee who works in Jersey City for at least 80 hours in a year. Employers who employ fewer than 10 employees in Jersey City will be required to provide unpaid sick time to any employee who works in Jersey City for at least 80 hours in a year. All employees performing work for compensation, whether on a full-time, part-time or temporary basis, are counted when determining whether an employer must provide paid or unpaid sick time. Governmental entities or instrumentalities, including any New Jersey school district or Board of Education, do not have to provide employees any sick time (paid or unpaid) under the Ordinance.
What Benefits Are Employees Entitled To?
Beginning on their first day of employment, eligible employees begin to accrue one (1) hour of sick time, either paid or unpaid, for every 30 hours worked, up to a maximum of 40 hours in a calendar year. Calendar year is defined as “a regular and consecutive 12-month period, as determined by an employer.” Employees may not use any accrued sick time until the 90th calendar day of employment. After the 90th day, employees must use sick time as it accrues; however, employers may permit employees to use sick time prior to accrual. Any unused accrued sick time, up to the maximum of 40 hours, can be carried over to the following calendar year. Employers are not required to compensate employees for any unused accrued sick time at the cessation of their employment.
When Can Employees Use Accrued Sick Time?
Upon an employee’s oral request, which must be provided to the employer as soon as possible, accrued sick time can be used for the following reasons:
- An employee’s mental or physical illness, injury, or health condition;
- An employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
- An employee’s need for preventive medical care;
- Care of a family member with a mental or physical illness, injury or health condition;
- Care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition;
- Care of a family member who needs preventive medical care;
- Closure of the employee’s place of business by order of a public official due to a public health emergency;
- An employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency;
- Care for a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the family member’s presence in the community would jeopardize the health of others because of the family member’s exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.
What Other Obligations Do Employers Have?
Notice Obligation: Employers must provide each employees with a written notice detailing their rights under the Ordinance at the commencement of their employment, or as soon as practicable if the employees are employed on the date the Ordinance becomes effective.
Posting Obligation: Employers must display a poster containing notice of the Ordinance in a “conspicuous and accessible place in each establishment where employees are employed.” The poster must be in English and any language that is the first language of at least 10 percent of the employer’s workforce — provided the Jersey City Department of Health and Human Services (“DHHS”) makes such translation available. The DHHS will create these notices and making them available to employers before the Ordinance goes into effect.
Recordkeeping Obligations: Employers must retain records for three (3) years documenting the hours worked by employees and the paid sick time taken by employees. Such records must be made available to the DHHS upon request. Failure to maintain such records creates a rebuttable presumption that the employer violated the Ordinance.
What Conduct Is Prohibited?
Employers are prohibited from:
- Interfering with, restraining or denying any right protected under the Ordinance;
- Retaliating against any employee who attempts to exercise his or her rights under the Ordinance; and
- Counting any paid sick time taken under the Ordinance as an absence that may lead to discipline, discharge, demotion, suspension, or any other adverse action under the employer’s attendance policy.
An employee’s rights under the Ordinance include, but are not limited to:
i. the right to request and use paid sick time;
ii. the right to file a complaint or inform any person about any employer’s alleged violation of the Ordinance;
iii. the right to cooperate with the DHHS in its investigation of alleged violations;
iv. the right to participate in any administrative or judicial action regarding an alleged violation; and
v. the right to inform any person of his or her potential rights under the Ordinance.
If an employer takes an adverse action against a person within 90 days of exercising one of these rights, there is a rebuttable presumption of unlawful retaliation.
If an employee believes his or her employer has violated the Ordinance, he or she may bring a cause of action in any court of competent jurisdiction or submit a complaint to DHHS. An employee is not required to bring a complaint with the DHHS as a prerequisite to filing a complaint in court.
Notice Violation: Employers are subject to a civil fine not to exceed $100 for each employee who was not given appropriate notice.
Posting Violation: Employers are subject to a civil fine of $500 for each establishment in which a poster was not displayed.
Other Violations: Employers deemed to be in violation of the Ordinance are subject to the maximum fine of up to $1,250 and/or a period of community service not exceeding 90 days. The penalty applies to each individual infraction.
Employer Paid Time Off Policy
If an employer already has a paid leave policy that provides paid leave sufficient to meet the total annual accrual requirements and employees can use such time for the same purposes and under the same conditions as the paid sick time under the Ordinance, the employer is not required to provide additional paid sick time.
Employers with an existing paid time off policy should review the policy to ensure it provides as least the same amount of sick time as required by the Ordinance. Employers also should review, and, if necessary, revise the policy to ensure employees may take such time off for the same reasons and under the same conditions as set forth in the Ordinance.
Employers with no current paid time off policy should consider adopting a policy that is compliant with the Ordinance and include the policy in any handbook or manual provided to employees or distribute the policy separately to all employees employed in Jersey City.
Additionally, all employers who employ individuals in Jersey City should obtain a copy of the poster and notice once it is prepared by the DHHS and ensure the notice is posted in each establishment and distributed to all employees in Jersey City.
Interplay With Other Leave-Related Statutes
If an employee qualifies for sick leave time pursuant to the Ordinance, as well the Family and Medical Leave Act (“FMLA”) and the New Jersey Family Leave Act (“NJFLA”), there is no prohibition against having the leave time run concurrently.
Additionally, the Ordinance prohibits employers from requiring an employee to provide documentation to explain the nature of the illness. The FMLA and NJFLA, however, allow employers to require employees to submit a medical certification to support their request for leave, which may include information prohibited by the Ordinance. While employers may not be able to prohibit employees from using accrued paid sick time for failure to submit documentation, employees still need to satisfy certain obligations under the FMLA and NJFLA to qualify for job-protected leave under those laws. Employers must be cognizant of the interplay between the sick leave time, and federal and state leave laws.