New Brunswick Sick and Safe Time Ordinance Brings Clarification for Busineses

New Brunswick’s New Sick and Safe Time Ordinance follows a Wave of Sick Leave Laws in New Jersey

In September, 2013, Jersey City passed the first local sick leave ordinance in the state. Since that time, 12 more New Jersey cities have passed sick leave ordinances.

However, most of the initial sick leave ordinances failed to address fundamental questions or to provide adequate guidance for business owners who sought to stay compliant with the new guidelines.

The New Brunswick sick and safe time ordinance has several specific clarifications and differences between its sick leave ordinance and other sick leave ordinances throughout the state. This article will highlight the main factors and what business owners and human resource managers should know for compliance.

New Brunswick adds major clarifications to their Paid Sick Leave Ordinance that has been missing throughout the state.

New Brunswick added several major aspects of sick leave that are missing from other local laws. First, New Brunswick acknowledged in their ordinance that domestic violence and sexual assault are a safety issue for the community.

Whereas other communities only provided paid time for sick employees and their families, New Brunswick added a safety clause that provides victims time to seek legal help and seek safety.

Secondly, New Brunswick recognized the differences between an employee who may work 5 hours a week and a full time employee. This was done in several important clauses.

Full time and part time employees are able to earn sick leave, but employees who work minimal hours are not able to earn sick leave. This is great clarification for businesses who have had to count every employee as a full employee count in other cities, even if the employee averages only 5 or 10 hours a week.

Third, the city defined exactly which private employers are subject to the law. The ordinance defines an employer as any business “which maintains a business location within the City.” This definition is a vital aspect of the law and means that businesses who are located outside of New Brunswick are not subject to the ordinance.

Throughout the USA local sick leave laws have addressed occasional-basis employees and defined how and when outside businesses are responsible to comply with the local ordinance. Even so, New Jersey cities have failed to address this very important question.

New Brunswick is the first municipality to address outside businesses and how the law applies (or doesn’t) to those businesses.

Fourth, the ordinance continues to provide clarity around definitions and expectations of the law. It includes definition for Full Time Equivalent when calculating business size, defines specific types of retaliation, and adds increased and more comprehensive insight to the requirements of the ordinance.

The ordinance also defines the retention period for records as a 3 year period, instead of leaving businesses guessing how long is long enough.

The New Brunswick ordinance does create some differences between local ordinances and this could mean additional review by businesses with multiple locations.

However, the clarifications defined in the ordinances provide additional protection to businesses and managers by not leaving vague and indecisive rules that provide strict punishments to companies. Now, the other cities in New Jersey should update their ordinances to provide the same clarification as New Brunswick.

Sick and Safe Time Overview

Qualified employees earn 1 hour of sick and safe leave for every 35 hours worked. This is different from the 1 hour of sick leave for every 30 hours worked required by other local townships. Like the other local ordinances, New Brunswick provides up to 40 hours of paid sick leave to employees of large businesses and up to 24 hours of paid leave to employees of small businesses.

However, in another defining show of clarification, the city excluded employers with less than 5 full time equivalent (FTE) employees from the sick leave requirements. Other ordinances mandated sick leave after 80 hours worked in a year, regardless of business size.

This clarification means that families who hire a regular babysitter, or small businesses with a part time bookkeeper are now exempt from the requirements.

New Brunswick doesn’t restrict more generous policies so employers who are bound by this ordinance and other local N.J. ordinances can still provide sick leave at the higher accrual rate of 1 hour for every 30 hours worked. For a full time employee, that means that the employee will hit the 40 hours per year sick leave cap 5 weeks earlier in the year.

Defining Business Size and Employee Type

Employees are classified under three categories for the sick leave benefits. Full time, part time, and Ineligible employees.

Full time employees are considered to work an average of 35 or more hours a week through the year. Part time employees must work an average of 20 hours or more a week. Any other employee that averages less than 20 hours a week is not eligible to accrue paid leave.

Large businesses are defined as employers with 10 or more full time employees, or the equivalent of 10 or more full time employees.

This would mean that 20 employees working 20 hours a week would be considered the same as 10 full time employees. Large businesses must provide up to 40 hours of paid sick leave to full time employees and 24 hours of paid sick leave to part time employees.

Small businesses are those companies with 5-9 employees, or the equivalent of 5-9 full time employees. Theses employers must provide up to 24 hours of paid sick and safe time leave to employees. Any employer with less than 5 employees is exempt from providing sick leave.

Employers must count all employees when determining employer size. This includes both permanent and temporary employees hired throughout the year.

Calculating the Business Employee Size

Employer size is based on Full Time Equivalent. New Brunswick defines full time as 35 hours a week or more.

This is a more logical approach to employer size and makes sense to not count all employers equal. Employers who have a few part time employees are of a different size and budget abilities than employers with the same number of full time employees. 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.

Paid Sick Leave Accrual

New Brunswick defines a calendar year as any 12 consecutive months and allows businesses to define their benefit year for awarding sick leave. Managers should inform employees if the accrual year is different than the standard calendar year of January through December.

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 can roll up to 40 hours of accrued sick leave to the following year. However, even if 40 hours are rolled over, the employee is still limited to using more than 40 hours of sick leave each year.

The ability to roll sick leave provides a way for sick leave to be taken at the beginning of the year before more time has accrued. Companies can also choose to avoid rolling sick leave if they payout unused, accrued sick leave at the end of the year.

Covered Employees under the Paid Sick Leave Ordinance

All businesses operating within New Brunswick fall under the ordinance. Any business that has 5 or more full time equivalent employees must provide paid sick leave. This includes temporary and seasonal employees, as well as full time and part time employees.

Exceptions to Earned Sick & Safe Time

Similar to the other ordinances, all government agencies are excluded from the requirement to provide paid sick leave to employees. This includes State and Federal Government employees.

Additionally, education employees are exempt and are defined as an employee of any school district or the board of education.

Construction Union employees are also exempt from the sick leave requirements. Workers must be organized under a collective bargaining agreement and be enrolled or have graduated from a registered apprenticeship program. This matches the definition found within the other New Jersey sick leave laws.

Allowable Uses for Earned Sick and Safe Time Leave

One major addition to the allowable uses for paid sick leave includes the clause that provides for victims of domestic violence, sexual assault, or stalking to seek help or remedies. This is important for any city or township that is seeking to enhance the “safety” of its citizens, but is glaringly absent elsewhere in New Jersey.

Paid sick leave hours can be used for both the employee or if the employee’s family member is experiencing any of the reasons, the employee can use sick leave to help or care for the family member.

Sick leave is allowed for any mental or physical illness, injury or health condition. Employees can seek a diagnosis, obtain care or treatment, or to get preventative care.

In addition, if the employee’s place of business is closed due by order of a public health official due to a public health emergency, sick leave can be used. If a child’s or family member’s school or place of care is closed by a public health official, then the employee can also take sick leave.

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 exposure to a communicable disease, then the employee can take time off to care for them. This is applicable, even if the family  member or employee has not actually contracted the disease.

Lastly, safe time can be take for several reasons associated with domestic violence, sexual assault, or stalking. The employee can take leave to obtain legal or law enforcement assistance or remedies to ensure the health and safety of the employee or their family member. This includes preparing for or participating in civil or criminal proceedings.

The employee can use safe time to seek treatment for the physical or mental injuries caused by the domestic violence, sexual assault, or stalking. Time can be used to obtain services from a domestic violence shelter, rape crisis center or other social services program for relief.

Safe time is also available for counseling and for safety planning, both temporary and permanent.

• Mental or physical illness: to care for, diagnose, 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.
• If the employee is a victim of domestic violence, sexual assault, or stalking
• To seek law enforcement or legal assistance, prepare for or attend civil or criminal court proceedings.
• To seek treatment by a health care provider for physical or mental injuries, or to attend a healthcare treatment for the victim
• To obtain services from a domestic violence shelter, rape crisis center,or other social services program for relief from domestic violence, sexual assault, or stalking.
• To obtain mental health counseling
• To participate in safety planning, permanent and temporary relocation, or other actions to increase the victim’s safety.

Family Member Definitions

New Brunswick’s sick and safe time ordinance recognizes children, including all biological, foster, adopted, step, legal ward and in loco parentis relationships. Parent-in-laws, legal wards, foster, adopted, step and in loco parentis parents of the employee are recognized.

Children of domestic partners or civil unions are recognized child relationships. In-law relationships include both spouse’s parents and domestic partner’s or civil union partner’s parents.  Children, parents spouses, grandparents grandchild and sibling relationships are defined as acceptable family relationships.

Spouses, domestic partners, and civil union partners are recognized. Grandparents, including spouses, domestic partners, and civil union partners of grandparents are also acceptable relations.

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.
• Grandchildren
• Siblings

Sick Leave Bank and Minimum Usage

Employees start accruing sick leave on the first date of employment, but have to pass through a 120  day grace period before using sick leave. This is a lengthier grace period allowed than surrounding cities. Employers who are trying to comply with the multiple laws are allowed to waive all or part of the grace period to match the 90 day grace in other cities.

Sick leave can be taken in hourly increments or in the smallest time increment that other absences are accounted for on the payroll system.

When an employee leaves an employer, their unused sick leave does not have to be paid out to them. However, they retain a sick leave back for 6 months after the termination of employment.

If the employee returns to work for the same employer again, the sick leave must be reinstated to the employee without a new grace period. 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

Employers who have existing paid time off policies that meet or exceed the Jersey City sick and safe time ordinance don’t have to provide additional sick leave time.

If the employer provides 40 hours of PTO that is allowed to be used for sick leave reasons, then the PTO meets the requirements of the plan. The existing policies must allow for sick leave to be used for all the reasons allowed in the law at for at least 40 hours of sick leave to be accrued at the same rate that the ordinance provides.

HR 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 can require that sick leave notice be given up to 7 days prior to use when foreseeable.

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.

Documentation can also be requested if the employee has a pattern of taking sick leave that could indicate fraudulent use. Safe time documentation can include police reports, written employee statement, court order, or other documentation that the employee is a victim of domestic violence, sexual assault or stalking.

Employees of eating/ drinking establishments who use sick leave on Federal or other holidays can be required to provide documentation that sick leave was used for acceptable purposes.

Anti Retaliation

The New Brunswick Sick and Safe Time Ordinance protects employees 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 and Safe Time Ordinance

Businesses are fined $100 for every employee who isn’t given notice of their rights under the law and $500 for every business location without notice posted.

Additional violations are fined at $2,000 per violation. The original ordinance required a fine of $1,250. Each day is considered to be a new infraction. Additionally, employers are subject to restitution to the employee.

The Department of Health and Human Services is in charge of overseeing the ordinance. In addition to filing complaints with the Health and Human Services Agency, employees can also file a civil lawsuit.

Time and Attendance and Record Retention

New Brunswick requires that employers maintain records of hours worked by employees, as well as sick leave accrual and usage.

The Ordinance also 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.

Manual timekeeping is more easily altered and lost than automated time and attendance records, 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.  

Employers must retain employee records related to sick and safe time for at least 3 years. 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 Jersey 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.

Resources

New Brunswick Sick and Safe Time Ordinance

Photo by Oscar del Alcazar

Written by Annemaria Duran. Last updated March 10, 2017