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New Jersey Paid Sick Leave Act Regulations Update

The Department of Labor and Workforce Development and the Division of Wage and Hour Compliance released a proposal of regulations on the NJ Paid Sick Leave Act.  There will be a public hearing on Tuesday, November 13, 2018 held at the NJ Department of Labor and Workforce Development.  This gives employers an opportunity to speak about the effects of the Act on their organizations.  

Some of the update highlights of the regulations are below.  For the complete proposed regulations click here.

Benefit Year

The benefit year for purposes of the act “means the period of 12 consecutive months established by an employer in which an employee shall accrue and use earned sick leave as provided pursuant to section 2 of this act,  provided that once the starting date of the benefit year is established by the employer it shall not be changed unless the employer notifies…”. 

In the recently released regulations it adds “(a) The employer shall establish a single benefit year for all employees”. 

This leads us to believe that it cannot be based on the anniversary date of hire for employees.  It would need to be Jan – Dec or some variation of that for all employees. 

 

Definition of Family

The act stipulates that time can be used for “(2) time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of…”.  The definition of family is quite extensive.  This has concerned employers since it is open to interpretation.  The clarification found in the regulation states:

“1. For the purpose of this definition, an individual whose “close association with the employee is the equivalent of a family relationship” shall include 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.”

This does not close that loop but one would think if someone had a “significant personal bond”, co-workers and managers would have heard about the individual and that relationship. 

Accrual of Benefit Hours

Employers are seeking clarification on some of the categories of staff and the need to track hours for compliance.  The regulation reads: “12:69-3.3…(c) Where the employer does not record hours worked for a particular employee because the employee is an exempt employee under either the Federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., or the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq., the employer may either:

  1. Record the actual hours worked for that employee for the purpose of calculating earned sick leave accrual; or
  2. Presume, solely for the purpose of calculating earned sick leave accrual that the employee works 40 hours per week.

 (d) For an employee who commences employment on or before October 29, 2018, earned sick leave shall begin to accrue no later than October 29, 2018.”

Earn Sick Leave Use

The magic number for employees to be able to use the earned NJ Sick Leave time has been 120 days after the employee commences employment. With the new regulations there is more clarification.  The addition of “whichever is later” would put all current employees who begin the NJ Sick Leave policy at your organizations on October 29th eligible to use the time starting February 26, 2019.  New employees beginning after the October 29th date will have a waiting period of 120 from their hire date. The employer has the right to waive the 120 day period. 

“(a) An employer shall permit an employee to use earned sick leave for any of the

following reasons: “ 

“(b) Except under (d) or (e) below, an employee shall not be eligible to use earned sick leave until February 26, 2019 (the 120th calendar day after October 29, 2018), or the 120th calendar day after the employee commences employment, whichever is later. (c) Following the 120-calendar-day period set forth in (b) above, the employee shall be permitted to use earned sick leave immediately upon either accrual under N.J.A.C. 12:69-3.3 or the earned sick leave having been advanced to the employee under N.J.A.C. 12:69-3.4. (d) Where the employee has accrued earned sick leave prior to October 29, 2018, he or she shall be eligible to use that earned sick leave prior to February 26, 2019 (the 120th calendar day after October 29, 2018).

(d) Where the employee has accrued earned sick leave prior to October 29, 2018, he or

she shall be eligible to use that earned sick leave prior to February 26, 2019 (the 120th

calendar day after October 29, 2018).

(e) The employer may permit an employee to use earned sick leave prior to the 120-

calendar-day period set forth in (b) above.”

Questions are still being raised and we will have updates as answers are provided by the NJ Department of Labor and Workforce Development and the Division of Wage and Hour Compliance.