New Jersey’s New Earned Sick Leave Act: Answers to Frequently Asked Questions

Just a reminder, the New Jersey Earned Sick Leave Act (the “Act”) went into effect on October 29, 2018.

Which employers are covered? The Act applies to all private New Jersey employers.  It applies to all public New Jersey employers with one exception. New Jersey public employers who already provide sick leave at full pay pursuant to any New Jersey rule or law other than the Act are excepted from the Act.   However, to the extent a public employer has employees who are not provided with full pay pursuant to another New Jersey law, those non-covered employees are now covered by the Act.

Which employees are covered? The Act applies to all employees—full-time, part-time, or seasonal. The Act does not apply to independent contractors.  Unlike some other states, New Jersey does not omit exempt employees from the scope of its paid sick leave law. In recording the working hours of an exempt employee, an employer may: (1) record the hours actually worked by an exempt employee; or (2) presume that the exempt employee works 40 hours in a workweek for purposes of paid sick leave accrual.

For what purposes may sick leave be used? The Act allows employees to use paid sick leave for:

• time needed for diagnosis, care, or treatment of an employee’s mental or physical illness, or for preventative medical care for the employee;
• time needed for the employee to aid or care for a family member of the employee during diagnosis, care, treatment of, or recovery from a family member’s mental or physical illness, injury, or other adverse health condition, or for preventative medical care for the family member;
• an absence which is necessary due to circumstances resulting from the employee, or a family member, being the victim of domestic or sexual violence;
• time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of an employee’s child, due to a public health emergency; or
• time needed by the employee in connection with a child of the employee to attend a school related conference, meeting, function, or other event requested or required by the school, or to attend a meeting discussing care provided to the employee’s child for the child’s condition or disability.

How much sick leave must be provided? Employees earn one hour of sick leave for every 30 hours worked.  The Act does not require the employer to permit the employee to accrue more than 40 hours of earned sick leave in any benefit year.

May employers cap sick leave use? Yes. Employers may cap sick leave use at 40 hours per year.

How much notice must an employee provide? The Act does not permit employers to ask for more than seven days’ notice for an event which is foreseeable that requires time off. For unforeseeable events, employees are only required to provide notice “as soon as practicable.”

What happens to sick leave at termination? The Act does not require employers to pay out unused earned sick leave to the employee at the end of employment.  However, if an employee is rehired within six months, employers must reinstate the employee’s previously accrued earned sick leave.

What if an employer already has a paid time off or paid sick leave policy? An existing paid time off policy can be compliant with the Act as long as that policy meets or exceeds all of the requirements of the Act and may be used for the purposes listed within the Act. For example, if an employer already allows paid time off for other purposes, an employer is not required to provide additional time designated for earned sick leave if vacation or personal leave days may be used for sick leave and the policy meets the Act’s requirements.

What are the consequences for failure to comply? Under the Act, an employer may be subject to penalties provided by the New Jersey State Wage and Hour Law.  The Act also provides for a private right of action which could subject employers to, among other things, liquidated damages equal to the actual damages sustained by an employee.

What’s next and what should employers do? If Employers have not already done so, employers should act now to ensure their compliance with the Act, including establishing or updating paid sick leave or paid time off policies to provide the required leave.  Employers must post the notice issued by the Commissioner in an accessible location.  The Commissioner’s notice details the amount of earned sick leave to which employees are entitled, the terms of its use, and remedies/rules provided by the Act.

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