Overview of Elizabeth’s Paid Sick Leave Ordinance
On November 3, 2015 citizens of Elizabeth voted an initiative to mandate Paid Sick Leave by privately held employers. Elizabeth Township was the tenth city in New Jersey to ordinance paid sick leave for employees. Earlier in 2015, Bloomfield City council passed an Earned Sick Leave Ordinance and Jersey City revised their existing Sick Leave Ordinance, making it more comprehensive. Shortly afterwards, New Brunswick and Plainfield would also pass sick leave laws. Currently, all townships and cities within New Jersey have nearly the identical Paid Sick Leave Laws for Private Businesses.
Elizabeth’s Sick Leave Ordinances is officially called “An Ordinance To Add A New Chapter Of Elizabeth To Promote The Overall Health And Safety Of The Residents And Workers Of The City Of Elizabeth By Reducing The Spread Of Communicable Disease And Contagion By Requiring A Policy Of Paid Sick Leave For Workers In Elizabeth.” Specifically, the ordinance applies to all private businesses. Elizabeth City exempted itself and all city employees from the new requirements. The new ordinance took effect on March 2, 2016.
Now private employees earn up to either 24 or 40 hours of paid sick leave each year. The number of hours earned depends on the type of work the employee does and the size of the business. All employees are covered by the new law, including full time, part time, seasonal and temporary employees that work at least 80 hours a year in Elizabeth.
Accrual of Sick Time
Employees in Elizabeth now earn 1 hour of paid sick leave for every 30 hours worked for their employer. Employees of large organizations, those with 10 or more employees, can earn up to 40 hours (5 days) of paid leave each year. Employees of smaller organizations, those with 9 or fewer employees, are eligible to earn up to 24 hours (3 days) of paid sick leave each year. However, for small employers, there are three exceptions where employees can earn up to 40 hours of sick leave a year. Any employee, regardless of employer size, who is a worker in child-care, home health care or food service is eligible to earn up to 40 hours of sick leave each year.
There are no sick leave exceptions for small or single person employers. That means that individuals employing a single person, or possibly even families employing a regular baby-sitter would be required to provide paid sick leave to their employee.
|Organizational Size||Hours of Sick Leave Available Each Year|
|10+ employees||40 hours of paid sick leave a year|
|<10 employees||40 hours of unpaid sick leave a year|
|*Industry exception, regardless of business size||Any Child-care, home health care, or food service worker can earn 1 hour for every 30 hours worked up to 40 hours a year.|
Calculating the Business Employee Size
Businesses whose employee count fluctuates during the year must average the total number of employees on payroll during the previous year. Note about Full TIme Equivalent Employees: The Elizabeth ordinance makes no mention of Full Time Equivalent (FTE) calculations to determine employee size for a business. This absence of language is different than many other sick leave laws across the United States. Specifically every employee, part time, seasonal, and temporary employee counts as a full employee count. That means that 2 part time employees who each work 15 hours each week, for a total of 30 hours, would still be counted as 2 employees under the ordinance. Although different from other State’s and local ordinances, this follows the trend of local sick leave laws in New Jersey.
Paid Sick Leave Accrual and Carryover
A calendar year in the ordinance is defined as any consecutive 12 month period. This allows businesses to determine what year they will provide employee leave on, a fiscal year, starting with the employee’s hire date, or another 12 month period. Even so, employers should inform employees if the accrual year is different than the standard calendar year of January through December.
Exempt Employees: Under the Fair Labor Standards Act, certain employees are exempt from being paid for overtime hours. These employees must pass a duties test and meet salary threshold. For the purposes of accruing paid sick leave, exempt employees are assumed to work a 40 hour week. If the employee regularly works less than 40 hours a week, then sick leave will accrue based on their regular schedule, but overtime hours for exempt employees do not accrue additional sick leave hours.
Unused sick leave can be carried over to the following year. Up to 40 hours of sick leave can be carried over. But, even if employees carry over unused sick leave, they are still restricted to using up to 40 hours of sick leave each year. The purpose of allowing sick leave to be carried over is so that employees can utilize sick leave needs at the beginning of the year, prior to accruing additional sick leave for that year. Businesses can choose to avoid rolling sick leave to the next year if they payout unused, accrued sick leave at the end of the year.
Covered Employees under the Paid Sick Leave Ordinance
Under Elizabeth’s Sick Leave For Private Employers, all employees who work in City limits at least 80 hours or more a year are covered. The ordinance doesn’t specifically limit the definition of employees to registered businesses within city limits, which leaves many businesses with occasional-basis employees confused about compliance with the new laws. It also means that individual employers and families also likely fall under the new Paid Sick Leave Laws. It is important that all employers with employees who work full time or on an occasional basis in Elizabeth, be familiar with the ordinance and what is required to maintain compliance. Employers should maintain accurate records of employee time spent working inside the city.
Employee Exceptions to Earned Sick Time
Elizabeth provides a few employee exclusions to the new sick leave law. Elizabeth City is excluded, from providing sick leave to city employees. Furthermore, In addition, all other government entity employees are also exempt from paid sick leave. This means that all other government employees, including Federal, State and Local governments are excluded. While it is standard practice to exclude other government agencies from forced sick leave laws, New Jersey local sick leave laws are unique in excluding the governing agency from the laws passed in that entity. Another exception to the sick leave laws include all educational employees, including employees of school districts and the board of education. Lastly, all construction union employees are also exempt. That includes the industries of reconstruction, demolition, alteration, custom fabrication, or repair work. Construction Union Employees must must be enrolled or have graduated from a registered apprenticeship program to be exempt.
Allowable Uses for Earned Sick Leave
The City of Elizabeth offers several reasons for using Earned Sick Leave. All uses for paid sick leave apply to the employee or to the employee’s family who are experiencing any of the sick leave reasons. Employees can obtain preventative care, seek a medical diagnosis, treatment or medical care. Both physical and mental illnesses, health conditions, and injuries are covered.
Likewise, any circumstance deemed to be a risk to public safety are also covered under earned sick time. Sick leave can be used if the employee’s place of work is closed by a public official. It can also be used if the a family member or child’s school or place of care is also closed by a public health official. Correspondingly, in the event that a public health employee determines that the presence of the employee, child, or family member would jeopardize the health of others because of their exposure to a communicable disease, then the employee can take time off for themselves or to care for the family member. Sick time can be used, even if the employee or the family member hasn’t actually contracted the disease.
Earned sick time has no specific provisions for victims of domestic violence, sexual assault or stalking to seek legal redress or to relocate for safety.
- Mental or physical illness, health condition or injury
- Mental or physical illness: to care for, diagnos, obtain treatment, or preventative care.
- If the business, place of care, or school has been closed due to a public health emergency
- If the employee or family member has had exposure to a communicable disease, even if the employee or family member hasn’t contracted the disease.
Family Member Definitions
The Paid Sick Leave Law recognizes child, parent, sibling, partner, grandparent and grandchild relationships. For children, biological, adopted, foster, legal wards, and step relationships are recognized. This includes children of domestic violence or civil unions. It also includes children that the employee stands in loco parentis relationships. Parental relationships include biological, adopted, foster, legal wards, step parents, and parents who stood in loco parentis relationships to the employee when the employee was a minor. It also includes parents of spouses, domestic partnerships, and civil union partners. Grandparents and grandparents domestic partner, spouse, and civil union partner are all recognized. Grandchildren and siblings are accepted family relationships, but there are no special provisions for additional legal and other relationships such as foster siblings or siblings in law.
- Child: biological, adopted, step, foster, child of a domestic partner or civil union
- Parent: biological, adopted, step, foster, parent or foster parent of a domestic partner or civil union and parent in law.
- Spouse: domestic partner or civil union partner
- Grandparents: including spouses and partners of grandparents.
Sick Leave Bank and Minimum Usage
Employees in Elizabeth start accruing paid sick leave on the first date of employment, but they have to pass through a 90 day waiting period before using accrued sick leave hours. On the 90th calendar day after employment commences, employees are allowed to use accrued sick leave. The only exception is when an employe is restarting employment with the same employer and has only been gone from employment for 6 months of less.
That is why it is vital for employers to maintain records of terminated employees and their accrued, unused sick leave hours. If a previous employee returns to work within 6 months of leaving the employer, all of their previously accrued sick leave must be reinstated back to that employee. The employee does not have to pass through another 90 day waiting period, but is immediately eligible to start using accrued sick leave. It doesn’t matter if the employee left voluntarily or involuntarily. The law is silent about employees who left their employer during the original 90 day grace period and whether or not they have to complete the original 90 day period. Upon the conclusion of employment, businesses are not required to payout sick leave.
Employees can use sick leave in 1 hour increments. If the employer’s payroll accounts for smaller increments of time for other types of absences or leaves, then the employee can take sick leave in those increments as well.
Employers are allowed to lend sick leave hours to employees before accrual of hours and are under no liability for choosing to do so or for denying a request by an employee to borrow sick leave hours. Sick leave hours transfer to a new owner or successor employer. Accrued hours also transfer with employees who transfer within the same company.
Coordinating with Existing Time Off Policies
The Paid Sick Leave Law allows businesses to continue to use existing time off policies and to have more generous policies than is required by law. In order for a business with an existing paid time off (PTO) policy to maintain compliance, the policy must provide at least the minimum sick leave required by law and must allow employees to use sick leave for the allowable uses defined in the ordinance. Time off must be awarded at at least the rate of 1 hour for every 30 hours worked or 40 hours a year and employees must be allowed to use sick leave for the reasons stated in the ordinance. Human Resource managers and Payroll Professionals with existing leave policies should examine their guidelines to make sure that all allowable reasons for leave in the sick leave law are also allowed in the company’s policy. Employers should also make sure that their policies include the notification required by law.
Reasonable Documentation and Notification of Sick Leave Usage
Employers are allowed to request two types of sick leave documentation when employees use sick leave. If the employee uses smaller amounts of sick leave, less than 3 consecutive days, then the employer can require the employee to confirm in writing that sick leave was used for allowed reasons. Once the employee uses sick leave for 3 or more consecutive days, then the employer can require a note from a health care provider that sick leave use was necessary. The documentation cannot disclose the nature of the sick leave and if the employer learns the nature of the sick leave reasons, then that information must be treated as confidential.
Businesses can have a policy that requires employees to notify the employer of sick leave usage, but the policy can’t require more than a 7 day notice if sick leave is foreseeable. If sick leave is not foreseeable, then notification can occur as soon as it’s reasonable for the employee to notify the employer.
All employees are protected from retaliation by their employers for using or attempting to use paid sick leave. This protects the employees from threats, discipline, discharge, suspension, demotion, reduction of hours or any other form of adverse action. Employees have the right to file complaints, work with the Agency in investigations, inform and discuss employee rights with other employees, and participate in any judicial action relating to the act. This includes protection for employees who communicate with coworkers about a violation of the law.
Notification and Records
When new employees are hired, employers must provide notification of employee rights to sick leave and their protection against retaliation to the employee. Moreover, employers must post the Employee’s Right to Sick Leave Notice, provided by the city, at the workplace in a conspicuous place where employees can access the information. Notices and posters must be provided in English and in any other first language that 10% or more of the employees speak. Bloomfield provides English and Spanish notices. Notices include the right to sick leave, accrual rate, amount of sick time available for accrual, and the terms of its use. Additionally notification must include the rights of the employee against retaliation and the right to file a complaint.
Fines and Remedies provided by the Sick Time Ordinance
Businesses who violate the Paid Sick Leave Ordinance can be fined up to $1,250 per violation. Each day is considered to be a new infraction. In addition, employers are subject to restitution to the employee including restitution, reinstatement, injunctive and declaratory relief. Employees can file with The Department of Health and Human Services, as well as filing a civil suit with the municipal court.
Time and Attendance and Record Retention
All employers affected by the Elizabeth Paid Sick Leave Law must maintain records of hours worked by employees, as well as sick leave accrual and usage. This is important because the ordinance presumes that a violation has occurred if the business doesn’t maintain accurate or consistent records and a complaint is filed. Ironically, the ordinance fails to define a set number of years for record retention and fails to place a specific statute of limitations for employees to file grievances. This makes it crucial for business owners and managers to maintain consistent and detailed records. Such records can be difficult to maintain on a manual basis. Business owners should consider an automated timekeeping system as manual time cards are more easily altered and lost. In addition automatic systems will including employee information, hours worked, sick leave accrual and usage. Businesses should also have written documentation of sick leave requests as well as a written employee handbook. Most local and state ordinances across the country require 3-4 years. Business owners should consider maintaining records for at least that long. It is more important than ever that companies have an electronic timekeeping system that provides accurate and automatic records. This can help the company to stay compliant with employment laws and to avoid fines and penalties.
Let SwipeClock Help
Businesses who have employees in more than just Elizabeth may have to comply with multiple conflicting City ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities. The company’s products, including TimeWorks Plus, Time Simplicity, and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage. SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com.
Written by Annemaria Duran. Last updated on February 21, 2017