Earlier this year, HR Legalist posted a blog entry about the New Jersey Earned Sick Leave Law. This new law (full text available here) takes effect on October 29, 2018 and requires most private sector employers in New Jersey to provide paid sick leave to its New Jersey employees. But don’t let this scare you. We’ve got some ghouls—I mean, tools—to help keep employers from getting tangled in this latest web of sick leave laws. The New Jersey Department of Labor (NJDOL) recently issued proposed regulations to implement the new law. The following is a summary of the key regulations:
- Integration with Existing PTO Policies. The regulations confirm that an employer’s existing paid time off (PTO) policy will be in compliance with the law if it meets or exceeds the law’s requirements for the use, accrual, and carry over of paid sick leave. Many employers already provide PTO beyond the law’s minimum accrual rate of one hour of paid leave per every 30 hours worked. However, have you checked your PTO policy to make sure leave can be used for all of the purposes listed in the law, such as domestic violence and school meetings related to the employee’s child?
- Required Notice and Posting. The proposed regulations state that the required employee notice may be provided by email, and the required posting may be posted via “an internet site or intranet site for exclusive use by its employees and to which all employees have access.” The NJDOL recently published the notice, which can be found here.
- Independent Contractors. The proposed regulations state that the NJDOL will employ the “ABC” test to determine whether an individual is an employee and thus covered by the new law. The ABC test places the burden on the employer to show that independent contractors are not employees.
- Hours Worked. The proposed regulations state that “hours worked” for purposes of the accrual method shall be defined in accordance with New Jersey’s existing wage and hour regulations.
- Benefit Year. The proposed regulations state that the employer must establish a single benefit year for all employees. If the employer wishes to change the benefit year, the employer must notify the NJDOL of its intent, and provide specified, detailed information. The NJDOL can refuse the change if it determines the change is intended to prevent use or accrual of paid sick leave.
- Foreseeable/Unforeseeable defined. The amount of notice an employee must give prior to taking sick leave depends on whether the leave is considered foreseeable or unforeseeable. An example of foreseeable leave is that dentist appointment you’ve already made for your kid because you know he is going to need it after eating all that Halloween candy. Unforeseeable leave is that which could not have been reasonably anticipated, such as waking up with a stomachache because apparently you cannot throw back all those Reese’s Cups as well as you used to.
- Blackout Dates. The proposed regulations state that the blackout dates when an employer can prohibit the foreseeable use of paid sick leave are limited to verifiable high-volume periods or special events, such as the Wednesday before Thanksgiving for an airline, or the product launch date for a manufacturer. The proposed regulations also require the employer to provide reasonable notice to its employees of the blackout dates.
- Rate of Pay. The proposed regulations address the rate at which employees must be paid when using paid sick leave. Generally, an employee must be paid at the same rate of pay s/he normally earns; however, the regulations also address how to calculate pay rates in more complicated scenarios, including: an employee with two or more different jobs with the same employer; an employee whose pay rate fluctuates for the same job; an employee paid by commission; an employee paid on a piecemeal basis; and an employee who uses sick leave to cover what would have been overtime.
The NJDOL is accepting comments on the proposed regulations until December 14, 2018. It is likely that the final regulations will not be substantially different from the proposed regulations. HR Legalist will update readers when final regulations are published. In the meantime, Obermayer attorneys are available to assist in ensuring your sick leave and PTO policies are in compliance. Happy Halloween!
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or email@example.com
Colleen O’Donnell’s practice includes counseling employers on compliance with federal and state laws governing the employment relationship, including personnel policies, wage and hour issues, leaves of absence rights, personnel actions, protection of proprietary information, sexual harassment and other workplace investigations and disability accommodations. She can be reached at 215-665-3026 or firstname.lastname@example.org