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Newark, New Jersey Enacts Paid Sick Leave Ordinance




by:
Jackson Lewis P.C. - White Plains Office

 
February 27, 2014

Previously published on February 26, 2014

The City of Newark has passed a “paid sick leave” ordinance mandating that all private employers in the City provide employees with paid sick time. Newark joins Jersey City as the only cities in New Jersey to enact such legislation and the eighth city nationwide to do so.

The Ordinance takes effect on May 29, 2014 (120 days after Mayor Luis A. Quintana signed the Ordinance into law on January 29, 2014), or upon the expiration of current collective bargaining agreements for employees working under such agreements, whichever is later.

All private employers in Newark must provide paid sick time to eligible employees. The amount of paid sick time an employer must provide depends on the number of employees it employs.

Eligible Employees
Employees who work in the City of Newark for at least 80 hours in one calendar year are eligible to accrue paid sick time.

Benefits
Employers that employ at least 10 employees for compensation must provide eligible employees up to 40 hours of paid sick time in a calendar year. Employers with fewer than 10 employees must provide eligible employees up to 24 hours of paid sick time in a calendar year. A “calendar year” means “a regular and consecutive 12-month period, as determined by an employer.”

Beginning on their first day of employment, eligible employees accrue one hour of paid sick time for every 30 hours actually worked.

Employees who are child care workers, home health care workers and food service workers will be eligible to accrue up to 40 hours of paid sick time, regardless of the size of their employer, as long as the hours are accrued in the calendar year.

Employees may not use any accrued sick time until the 90th calendar day of employment; they may use paid sick time as it is accrued beginning the 91st calendar day of employment. Employees can carryover up to 40 hours of unused accrued paid sick time to the following calendar year.

Employers may loan employees paid sick time in advance of accrual. They also may determine whether paid sick time can be used in increments of less than one day. Employers may limit employees’ use of paid sick time to 40 hours in a calendar year and are not required to compensate employees for any unused accrued paid sick time at the cessation of employment.

Permitted Uses
Upon request, employees can use accrued paid sick time for the following reasons:

  • An employee’s or a family member’s mental or physical illness, injury, or health condition;
  • An employee’s or a family member’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
  • An employee’s or a family member’s need for 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.

When the need to use paid sick time is foreseeable, employers may require reasonable advance notice of the employee’s intention to use paid sick time; however, employers may not require employees to give notice more than seven days prior to the use of the paid sick time.

Employers may require employees to confirm, in writing, their use of the paid sick time was for one of the authorized purposes. If an employee uses paid sick time for three consecutive days or three consecutive instances (if less than one day), employers may require reasonable documentation from a medical professional that the time has been used for a purpose covered by the Ordinance. Employers, however, may not require employees or their medical professional to explain the nature of the illness.

Other Employer Obligations
Notice:
Employers must provide all 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 already employed on May 29, 2014. The notice must describe:

(1) the right to paid sick time,

(2) the accrual rate and the amount of paid sick time, and the terms of its use under the Ordinance,

(3) the right to be free from retaliation for properly requesting the use of paid sick time, and

(4) the right to file a complaint or bring an action in municipal court if the paid sick time is denied by the employer or the employee is retaliated against for requesting or taking paid sick time.

The notice must be in English and the employee’s primary language if such language is the first language of at least 10 percent of the employer’s workforce. Newark’s Department of Child and Family Well-Being (“the Department”) can provide the notices in English, Spanish and any other languages it deems appropriate.

Posting: Employers must display a poster in English and any language that is the first language of at least 10 percent of the workforce containing the information in the Notice in a “conspicuous and accessible place in each establishment where employees are employed.”

Recordkeeping: Employers must allow the Department reasonable access to its records. An employer’s failure to maintain and retain adequate records documenting hours worked and paid sick time taken creates a rebuttable presumption that the employer violated the Ordinance.

Prohibited Conduct
Employers are prohibited from:

  • Interfering with, restraining or denying the exercise of, or attempt to exercise any right protected under the Ordinance; and
  • Retaliating against any employee because the employee has properly exercised his or her rights under this Ordinance.

Violations
An employee may file a complaint or bring an action in municipal court if paid sick time is denied by the employer or the employee is retaliated against for requesting or taking paid sick time. Employers found to be in violation of the Ordinance are subject to a penalty of up to $1,000. The penalty applies to each individual infraction. Additionally, employers that violate the Ordinance may be required to pay restitution in the amount of any paid sick time unlawfully withheld.

Employers Already with a Paid Time Off Policy
If an employer already has a paid leave policy that provides an amount of 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 under the Ordinance, it is not required to provide additional paid sick time. Such employers still must comply with the notice requirements.

If an employer’s existing paid leave policy does not meet the requirements of the Ordinance, it must revise the policy consistent with the Ordinance.

Next Steps
Employers should determine whether any of their employees are eligible for paid sick time under the Ordinance.

Employers with no paid time off policy should consider drafting a policy that is compliant with the Ordinance.

Covered employers should request a copy of the notice from the Department or prepare such notice on its own, and ensure the notice is posted in each establishment and is distributed to all employees in Newark.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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