By: Chantal N. Guerriero, Esq. and Ty Hyderally Esq.
The New Jersey Department of Labor recently issued final regulations on the New Jersey Earned Sick Leave Law (ESLL), N.J.S.A. 34:11D-1 et. seq. thereby providing guidance on the law’s enforcement and regulation. As a reminder to NJ employees, the ESLL has been in effect since October of 2018, and thus NJ employers have since been legally obligated to provide sick leave in the following manner:
…[f]or every 30 hours worked, the employee shall accrue one hour of earned sick leave, except that an employer may provide an employee with the full complement of earned sick leave for a benefit year, as required under this section, on the first day of each benefit year…The employer shall not be required to permit the employee to accrue or use in any benefit year, or carry forward from one benefit year to the next, more than 40 hours of earned sick leave.
As aforementioned, the recent final regulations serve to aid in the enforcement and clarification of the ESLL, so that both employers and employees can ensure compliance. One noteworthy clarification concerned what constitutes a benefit year. The regulations make clear that a benefit year may begin on the first day of an employment for each individual employee, and end one year therefrom. Thus, there is no requirement under the ESLL that a uniform benefit year be established for all employees.
Additionally, while under the ESLL, employers are permitted to used paid time off (PTO) to cover their obligation to provide employee sick leave, the regulations state that employers must implement such PTO in the following manner to be compliant:
(a) permit an employee to use all of the PTO for reasons covered by the ESLL;
(b) provide for accrual or advancement in accordance with the ESLL’s requirements (i.e., 40 hours advanced or accruing at a rate of one hour for every 30 hours worked);
(c) allow employees to use the time off in accordance with the ESLL;
(d) provide for payment of sick time in accordance with the ESLL; and
(e) provide for payout or carryover in compliance with the ESLL.
Additionally, the regulations note that the ESLL’s anti-retaliation applies to PTO when such PTO is implemented by employers to comply with the ESLL. Under the anti-retaliation provision, no employer is permitted to retaliate or discriminate against an employee who, “[R]equests or uses earned sick leave…files a complaint…alleging the employer’s violation of any provision of [the ESLL] or informs any other person of their rights under [the ESLL].” N.J.S.A. 34:11D-4. Further, “[t]here shall be a rebuttable presumption of an unlawful retaliatory personnel action…whenever an employer takes adverse action against an employee within 90 days of when that employee [sought enforcement of their rights under the ESLL.]” Employees may also be entitled up to 200 percent in liquidated damages for employer retaliation attributable to an employee’s attempt to enforce their rights under the ESLL. Thus, employees who may have experienced any negative treatment for their attempts to enforce their rights under this law, or who feel that their employers are not compliant with the ESLL should seek legal advice for their own protection.
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