Reminder – Earlier this year (as we reported in this post), the New Jersey Paid Sick Leave Act (NJPSLA) was approved. The NJPSLA mandates that employees will accrue one hour of paid sick leave for every 30 hours worked, up to a maximum of 40 hours of sick leave time during a consecutive 12-month period. The NJPSLA goes into effect October 29, 2018.
Since we last reported on this, the New Jersey Department of Labor released proposed regulations related to the NJPSLA. The regulations are still in the comment period and are not anticipated to be enacted prior to 2019, which means they will not be enacted prior to the effective date.
The regulations clarify some aspects of the law, such as the rate of pay to be applied during paid leave based on various scenarios; define “foreseeable” and “not foreseeable”; and detail the penalties for violations of the act – up to $250 for a first violation, and penalties of $250 ‒ $500 for subsequent violations.
Some of the other more notable information was slightly more in depth, and it was a mixed bag for employers.
The bad news:
- Recordkeeping must document not just hours worked and sick leave taken by employees, but also the amount of sick time accrued, advanced, used, paid, paid out and/or carried over.
- If an employee alleges that an employer has failed to properly furnish him/her with paid leave and the employer has not maintained adequate records documenting hours worked by the employee and the sick leave accrued, used and paid, there will be a rebuttable presumption that the employer violated the NJPSLA.
- Family member definition has remained loose – the proposed regulations explain that “close association with the employee is the equivalent of a family relationship” means “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.”
- Parameters have been put around blackout dates – an employer must give advance notice of these dates and limit these dates to “verifiable high-volume periods or special events” where permitting sick leave would “unduly disrupt the operations of the employer.”
The good news:
- Employers are not required to maintain records regarding hours worked for exempt employees, employees for whom an employer advances earned sick time or those employees an employer presumes work 40 hours/week for the purposes of accruing sick leave under NJPSLA.
- Posting on an employer’s intranet will satisfy the posting requirement.
- Independent contractors are NOT covered under this law – the ABC test will be used to determine whether an individual is an employee.
- Hours worked will be defined in the same manner as currently defined by the wage and hour law (i.e., vacation time will not count toward time worked).
As a reminder, this law requires posting and distributing notice to employees, so policies should be prepared for such, and employers should be ready to enact those policies (including tracking accrued time for employees) as of the effective date. Please feel free to contact the BakerHostetler Employment Group if you have any questions about this.