The Township of Irvington Mandates Sick Leave for all Employees in City Limits
In January of 2015, the Irvington, NJ Paid Sick Leave Ordinance took effect. The Ordinance is officially known as “an Ordinance to add a New Chapter to the Ordinances of Irvington and to Promote the Overall Health and Safety of the Residents and Workers of the Township of Irvington by Reducing the Spread of Communicable Disease and Contagion by Requiring a Policy of Paid Sick Leave for Workers.” Irvington is one of nine cities in New Jersey that have passed sick leave laws within a year and a half. Currently (2017) 13 New Jersey cities have a paid sick leave ordinance, including Newark, East Orange, and Montclair. Employers who have employees who work either full time or on an occasional basis in any of these cities must know what the sick leave laws are or be liable for violations and penalties. The purpose of this article and the other articles on New Jersey cities is to provide a clear and accurate overview of the compliance requirements for sick leave accrual and usage.
Accrual of Safe and Sick Time
Irvington employees earn paid sick time at the rate of 1 hour for every 30 hours worked. Workers in several industries are allowed to accrue up to 40 hours of sick leave a year, regardless of their employer size. Those workers include child-care, home health-care, and food service employees. Other workers are able to accrue sick leave based on the size of their employer. Employees of businesses with more than 10 employees can earn up to 40 hours a year of sick leave each year. Employees of small employers, those with under 10 employees, can accrue up to 24 hours of earned sick leave pay each year.
|Employer Size||Hours of Sick Leave Available Each Year|
|10+ employees||1 hour per 30 hours worked up to 40 hours a year|
|<10 employees||1 hour per 30 hours worked, up to 24 hours a year*|
|*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
All employees count toward the employer size including full, part time and temporary employees. To calculate the size of the employer when the employees fluctuate, business can calculate the average number of employees employed during the previous year.
Paid Sick Leave Accrual
Businesses can use any consecutive 12 month period as their calendar year. Any employees who are considered exempt under the FLSA definition of exempt employees from overtime, are assumed to work a 40 hour week and will accrue sick leave based on those hours.The only exception is if an exempt employee’s regularly works less than 40 hours a week, in which case that employee will accrue sick leave on their normally worked hours.
Employees are also allowed to roll accrued sick leave to the following year. Even if sick leave hours are rolled to the following year, the employee can still be restricted to using no more than 40 hours of sick leave in a year. The other option that businesses have is to pay out all unused sick leave at the end of the year. If an employee is paid out for their sick leave, then sick leave doesn’t have to be rolled to the next year.
Covered Employees under the Paid Sick Leave Ordinance
The Irvington Ordinance covers all employees who are not employed by a government agency. This includes temporary and seasonal employees, as well as full time and part time employees. Any worker who is employed by a private sector employer now earns sick leave. Employees must work inside of city limits for at least 80 hours a year.
Exclusions to Earned Sick Time
Federal and State government employees are exempt. Irvington City employees are also exempt. Federal and State employees are exempt, including legislative and judiciary employees. This is different than many of the sick leave laws across the country. Additionally, education employees are exempt and are defined as an employee of any school district or the board of education. Construction Union Employees are exempt if they have a collective bargaining agreement that specifically waives the rights to sick leave. Construction includes reconstruction, demolition, alteration, custom fabrication or repair work. Additionally, construction employees must have graduated from a registered apprenticeship program.
Allowable Uses for Paid Sick Leave
Employees can use sick leave for both themselves or for a family member for any of the allowable uses for sick leave. These reasons include treatment, care, diagnosis or preventative care for any mental or physical illness, injury or health condition. Also included is if the employee’s place of business is closed due by order of a public health official due to a public health emergency. If a school or place of care for the employee’s child or family member is likewise closed by a public health official, then the employee can also take sick leave. In addition, if a public health employee determines that the presence of the employee, child, or family member would jeopardize the health of others because of exposure to a communicable disease. This is applicable, even if the family member or employee has not actually contracted the disease. There are no specific provisions for victims of domestic violence, sexual assault or stalking to seek legal redress or relocate for safety. Presumably any physical or mental injuries could be covered under the above reasons, even if not specifically stated.
- 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
Irvington defines the family relationships allowed for the paid sick leave as children, parents, spouses or partners, siblings, grandchildren and grandparents. Children relationships include biological, adopted, foster, step, legal wards and in loco parentis relationships. Additionally, children of a domestic partner or a child of a civil union are also recognized under the ordinance. Parents include biological, foster, step, in loco parentis, parent-in-law, and parents or guardians of a domestic partner or civil union partner are all recognized. Spouses, domestic partners, and civil union partners are allowed. Grandparents, including spouses, domestic partners, and civil union partners of grandparents are also acceptable relations. This varies from East Orange definitions. Lastly, grandchildren and siblings are allowed under the ordinance.
- 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
Employers can determine if employees are allowed to use sick leave in increments of less than 1 day.
After the termination of employment, employees retain a sick leave for 6 months. The sick leave bank applies whether or not the termination was voluntary or involuntarily. At the termination of employment, the employer does not have to pay out unused sick leave to the employee. However, if the employee returns to the same employer within 6 months, they are to be reinstated with all of their previously accrued and unused sick leave hours. Furthermore, employees who reinstate with the same employer do not have to go through another 90 day grace period before being allowed to use sick leave hours.
New employees begin to accrue sick leave on the first date of employment. However, they can be restricted from using sick leave until after 90 days of employment have passed.
Employers are allowed to lend sick leave hours to employees before accrual of hours and are under no liability for choosing to do so. Employers who deny a request to loan sick leave are also under no liability. 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
Irvington allows for more generous vacation or time off policies as long as the policy is as generous or more generous that is required by law. Employer 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 employer’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 require an employee to confirm in writing that sick leave was used for acceptable purposes. After an employee has used 3 or more consecutive days of sick leave, then the employer can require documentation by a health care provider that sick leave was necessary. The statement cannot disclose the nature of the sick leave.
Employers can require that employees provide a reasonable notice of sick leave usage, but the requirement cannot be for more than 7 days notice. This applies if sick leave is foreseeable such as with preventative care. If notice is not practicable, then employees should notify the employee as soon as it is practicable.
Employees in Irvington are protected from any kind of retaliation under the law. Employees can exercise their rights of paid sick leave and cannot be prohibited from attempting to exercise their rights. They can file complaints, work with the Agency in investigations, participate in any judicial action relating to the act and inform others of their rights under the act. Employees are protected from any sort of threat, discipline, discharge, suspension, demotion, reduction or hours, or any other adverse action.
Notification and Records
Employers must provide a notification of employees rights under the sick leave law when new employees are hired. Additionally employers must post notification in a conspicuous place where the employee’s work. The notices and posters must be in English and any other first languages spoken by more 10% or more of the employees. The notice has to 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
Employers are subject a penalty of $1,000 per infraction. Additionally, employers are subject to restitution to the employee. The Municipal Court oversees the compliance and enforcement of the sick leave ordinance.
Time and Attendance and Record Retention
Irvington presumes a violation of paid sick leave laws if employers do not maintain good records. This makes it vital for business owners and managers to maintain accurate and consistent records. Although the specifics of the records to be kept are not named in the ordinance, there are several basics that businesses should maintain. Those include maintaining good time and attendance, or timekeeping records, including employee information, hours worked, sick leave accrual and usage. This is vital in case a complaint is brought against the employer. It would also be a good practice to have written documentation of sick leave requests. All of these records can be done seamlessly with an automatic timekeeping system, and are harder to maintain if timesheets are filled out manually. Irvington’s ordinance doesn’t name a specific number of years that records must be retained, but across the United States, the typical required retention period is 3-4 years. Businesses would be wise to retain records for several years as the statue has to specific time limitations of employee complaints. 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 Irvington City 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 to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
Written by Annemaria Duran. Last updated Feb 21, 2017