On September 25, the City Council of Jersey City, New Jersey, passed an ordinance requiring employers to provide paid sick leave for employees. With the adoption of the ordinance, Jersey City has joined a fast-growing list of states and municipalities around the United States that now require mandatory paid sick leave for most employees. Although Jersey City is the first city in New Jersey to enact such a provision, a similar law that would cover employees throughout New Jersey has been introduced in the State Assembly. Jersey City’s ordinance will go into effect on January 23, 2014.
What will the ordinance provide to employees?
Under the ordinance, employees will begin to accrue sick leave immediately upon being hired, but they will not be eligible to use the leave until after 90 days of employment. Sick leave will accrue at a rate of one hour for every 30 hours worked. Employees will be able to accrue a maximum of 40 hours of sick leave per calendar year and will be able to carry over this leave from year to year, but they cannot accrue more than 40 hours at any given time and cannot use more than 40 hours per calendar year. The law does not require employers to “cash out” accrued but unused sick leave upon termination of employment unless the employer has a policy or contractual obligation to do so.
The law requires employers to provide new hires with written notice of their rights and mandates that employers post a notice regarding sick leave benefits.
Employers that already provide their employees with sick leave beyond what is mandated by the new ordinance will not be required to provide additional sick leave. However, as discussed more fully below, employers must be cautious to ensure that the sick leave they provide covers the same purposes required by the ordinance.
Who is covered?
The ordinance covers all employees who work within Jersey City. In addition, employees of Jersey City–based businesses who are not themselves based in Jersey City are covered by the ordinance if they work at least 80 hours per year within city limits. Jersey City businesses with 10 or more employees (whether the employees are located within Jersey City or not) will be required to provide paid sick leave, while those with fewer than 10 employees need only provide unpaid leave.
When may employees take leave?
Eligible employees may use sick leave to address their own or a family member’s mental or physical illness, injury, or condition or to care for a child whose school or daycare has been closed due to a public health emergency.
What notice and documentation must employees provide?
Employees are obligated to provide their employers notice of their need for leave “as soon as practicable” and may make requests for leave orally. An employer may require documentation to substantiate the need for leave only after an employee has used more than three consecutive days of sick leave. Employers may not require employees to provide a description or explanation of the illness or condition necessitating their leave, and employers must accept a medical note indicating merely that sick leave was necessary.
Key Differences Between the Jersey City Law and Existing State and Federal Laws
Employers should be aware of several key differences between the Jersey City ordinance and the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). These differences include the following:
The ordinance allows an employee to use sick leave to care for a child whose school or daycare facility is closed because of a public health emergency. Leave for this purpose would not generally be covered by either the NJFLA or the FMLA.
The ordinance does not allow an employer to ask for documentation to substantiate the need for leave unless the employee uses more than three consecutive days. Even then, employers may not require any information regarding the nature of the condition that necessitated the leave. This will complicate the ability of employers to assess whether a given illness may be protected by the FMLA and/or the NJFLA.
The ordinance creates a rebuttable presumption of unlawful retaliation whenever an employer takes adverse action against an employee who reported a violation of the ordinance, opposed any policy or practice that is unlawful under the ordinance, or “inform[ed] any person of his or her potential rights” under the ordinance.
The ordinance requires employers to maintain, for three years, records showing the hours worked and sick leave accrued and used by employees and to permit the Jersey City Department of Health and Human Services to inspect such records upon request.
To ensure compliance with the ordinance, employers who operate in Jersey City should consider taking the following actions in advance of January 23, 2014:
Determine which employees, if any, will be covered by the ordinance and issue the required notice once the ordinance goes into effect.
Review sick leave policies to ensure that they are meeting or exceeding the provisions of the ordinance.
Train managers and human resources employees about the ordinance and make sure they are aware of the ordinance’s antiretaliation provisions.
Ensure that time and payroll records are sufficiently detailed to reflect the amount of sick leave accrued and used by covered employees.