Jersey City, New Jersey Enacts Sick Leave Ordinance . . . Is Newark Next?

On October 21, 2013, Jersey City enacted an ordinance (passed by its City Council on September 25) mandating all Jersey City businesses to provide sick leave to their employees. The sick leave must be paid or unpaid depending on the employer’s size. Ordinance no. 13097 takes effect on January 24, 2014 or upon the expiration of current collective bargaining agreements for those employees who are covered by such agreements.

Under the ordinance, private employers operating in Jersey City with 10 or more employees must provide up to five paid sick days each year to any employee who works in Jersey City for at least 80 hours in one year. The ordinance does not clarify whether all 10 of the employees must be working in Jersey City. Employers with fewer than 10 employees are required to provide up to five unpaid sick days each year to employees who work in Jersey City for at least 80 hours in one year. The ordinance defines “year” as a “regular and consecutive 12-month period, as determined by an employer.” Employees may take the sick leave in hourly increments or in the smallest increment used by the employer to track absences or other time off—whichever is smaller.

The ordinance notes that employers with paid leave policies that provide an amount of paid leave sufficient to meet the total annual accrual requirements of the ordinance and which provide leave for the same purposes need not provide additional paid sick time.

Leave Accrual

Full-time and part-time employees will earn one hour of sick time for every 30 hours worked, up to 40 hours per year. Employees will not be eligible to use their sick days until they have worked for an employer for at least 90 days, unless the employer agrees otherwise. All eligible employees may carry over a maximum of 40 hours per year, regardless of the size of their employers. However, accrued but unused leave time need not be paid out upon discharge under the ordinance.

Purposes for Leave

Eligible employees may use their accrued sick time for the following reasons:

• an employee’s mental or physical illness, injury or health condition, the diagnosis, care, or treatment of such conditions, or for preventive medical care;
• care of a “family member” (with an expansive “family member” definition including children—whether biological, adopted, step, civil union partner’s, etc.—parents, in-laws, grandparents or grandparent in-laws, grandchildren, siblings, etc.) with a physical or mental illness, injury, health condition, or for the diagnosis, care or treatment of a family member with such conditions;
• closure of the employee’s place of business by order of a public health official due to a public health emergency, or to care for a child whose school or place of care has been closed by order of a public health official; and
• to care for a family member when it has been determined by authorities 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, regardless of whether the family member has actually contracted the disease.

Any leave taken for such purposes cannot be counted by the employer as an absence that results in discipline, discharge, demotion, suspension, or any other adverse action.

Employee Obligations and Certifications

In order to take leave, employees simply need to give their employer notice of the need, as soon as practicable. Employers can require reasonable documentation (signed by a health care professional indicating that sick leave is necessary) only if the leave is for more than three consecutive days. However, unlike other similar certifications under state and federal law, employers cannot require that the documentation explain the nature of the illness necessitating Jersey City sick leave.

Notice and Record-keeping Obligations

Employers must provide their employees with individual written notices (in a form to be prepared by the city) explaining their rights at the beginning of employment or “as soon as practicable” if the employees are already employed when the ordinance takes effect. Employers must also conspicuously display a poster explaining the ordinance in English and any other language that is the first language of at least 10 percent of the workforce (if the translation is made available by the city). The ordinance also requires employers to maintain records documenting employee hours and leave time used by employees for three years, to be made available upon the city’s request.

Penalties

Penalties for violating the ordinance are substantial. Aggrieved employees (e.g., those denied leave or retaliated against for taking leave) can file an administrative complaint (with maximum fines of $1,250 and/or up to 90 days of community service) or bring a private civil action for damages. Further, failure to properly notify employees of their rights under this ordinance carries up to a $100 civil penalty and failure to display the required poster carries up to a $500 civil penalty.

Is Newark Next?

Shortly after Jersey City enacted its ordinance, on October 29, the Newark City Council voted unanimously to introduce its own sick leave ordinance. That ordinance, if enacted, would entitle every full-time or part-time Newark employee (private or public sector) to an hour of paid sick time for every 30 hours worked. Employees of a workplace with 10 or more employees could accrue up to five sick days per calendar year, and those working for employers with fewer than 10 employees could accrue up to three sick days per calendar year. We will provide a more detailed summary of the Newark Sick Pay Ordinance if it is enacted.