Montclair Paid Sick Time Ordinance Means more Compliance for Local Business.
On March 4, 2015, the Montclair Paid Sick Time Ordinance took effect and employees in the city started accruing sick leave. Also known as the Sick Leave Ordinance, it was voted into existence in November 2014 by the citizens of Montclair. The ordinance specifically applied to the private sector and includes any employee who works in city limits for at least 80 hours a year or more for the same employer. This applies even if the company is not located inside of city limits. Other New Jersey Cities, including Newark, East Orange and Irvington have also passed sick leave laws. Managers 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
Any privately employed employee in Montclair earns paid sick leave of 1 hour for every 30 hours worked. Three main classifications of workers are identified in the new ordinance. Workers who work in child-care, home health-care, and food service workers can earn up to 40 hours a year of paid sick leave. The size of their employers doesn’t make a difference to the hours they can earn. Additionally, employees of larger businesses, those with at least 10 employees or more, can also earn up to 40 hours of sick leave a year. Small business employees are allowed to earn up to 24 hours of sick pay each year.
|Organization 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*|
|*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
All employees count toward the employer size including full, part time and temporary employees. To calculate the size of the business, when the employees fluctuate, business can calculate the average number of employees employed during the previous year. The ordinance doesn’t define full time equivalent (FTE) as a means of calculating employee size so businesses who have under 10 FTE employees should contact the city to make sure that employee size is determined on FTE and not simply on the exact number of employees, for example 11 employees who work 15 hours a week.
Paid Sick Leave Accrual
Businesses can use any consecutive 12 month period as their calendar year. Exempt employees, those who are exempt from overtime according to the definitions of the Fair Labor Standards Act, are assumed to work a 40 hour week. Unless an exempt employee regularly works less hours, they will accrue sick leave based on the 40 hour week. 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. Managers also have an option to pay out unused sick leave at the end of the year and if they choose this option, are not required to roll sick leave over to the next year.
Covered Employees under the Paid Sick Leave Ordinance
The Montclair Paid Sick Leave Ordinance covers all employees who are privately employed. This includes temporary and seasonal employees, as well as full time and part time employees. All private-sector workers now earn sick leave. Employees must work inside of city limits for at least 80 hours a year.
Exclusions to Earned Sick Time
Montclair excludes all government employees. This includes Federal, State, Township, or any institution or division of the state. This includes legislative and judicial divisions. This follows the other cities’ sick leave ordinances across New Jersey, but do vary from other local ordinances across the country, which include the ruling entity as an employer. In addition, 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 Earned Sick Leave Law
The purposes defined for sick leave in Montclair are identical to the purposes allowed in the other New Jersey cities. This makes it easier for employers, with employees in multiple locations, to modify existing sick leave policies. Montclair 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
The Montclair ordinance identifies the specific family relationships allowed for the paid sick leave. Those relationships include child, parent, partner, grandparent, grandchild, and a sibling. Specifically, it recognizes the types of these relationships allowed. Children relationships include biological, adopted, foster, step, legal wards and in loco parentis relationships. Children of domestic partners are also included in the ordinance. Parents include biological, foster, step, in loco parentis. Parental relationships also include legal guardians of the employee or the employee’s domestic partner, parent-in-law. Spouses, domestic partners, and civil union partners are recognized. 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
Employees begin to accrue sick leave on their first date of employment. However, employees can’t use accrued sick leave until after their 90th date of employment.
Sick leave can be taken in hourly increments or in the smallest time increment that other absences are accounted for on the payroll system.
Employee’s accrued sick leave remains in tact for 6 months after employment is terminated. If the employee reinstates with the business within that time, then the employee must be reinstated all of their previously accrued sick leave. Further, the employee does not have to pass through a 90 day probationary period, but is immediately qualified to start using sick leave upon reinstatement of employment. This is the case, whether employment was voluntary or involuntarily. Upon the termination of employment, businesses are not required to payout sick leave.
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
The Montclair sick leave ordinance allows for existing paid leave policies to satisfy the Paid Sick Leave Ordinance if the policy allows for at least the minimum number of hours of sick leave annually. Additionally, the existing policies must allow employees to use paid time off (PTO) for the same reasons and purposes allowed by law. 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
Businesses 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 manager 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 Montclair 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. This includes protection for employees who communicate with coworkers about a violation of the law.
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
Companies are subject a fine of $2,000 per violation. Each day is considered to be a new infraction. Additionally, employers are subject to restitution to the employee. The Health and Human Services Agency is in charge of overseeing the ordinance. In addition to filing complaints with the Health and Human Services Agency, employees can also file a complaint in Municipal Court.
Time and Attendance and Record Retention
Montclair Township presumes a violation of paid sick leave laws if employers do not maintain good records. This makes it crucial for business owners and managers to maintain consistent and detailed records. Although the specific details that should be kept in the HR records are not described in the ordinance, there are several basics that businesses should maintain. Those include maintaining good time and attendance records, including employee information, hours worked, sick leave accrual and usage. This is vital in the instance that a complaint is brought against the business. Businesses should also have written documentation of sick leave requests as well as a written employee handbook. All of these records can be done seamlessly with an automatic timekeeping system, and are harder to maintain if timesheets are filled out manually. Montclair’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 Montclair 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 Feb 20, 2017