Paterson City Paid Sick Time Ordinance
On January 7, 2015, Paterson became the fifth city in New Jersey to implement a sick leave law for employees. The Ordinance is officially called “An Ordinance Creating Paterson Code Chapter 412, Entitled “Sick Leave for Private Employees” Unofficially, the Ordinance is known as the Paterson Earned Sick Leave Law. As it states in the ordinance, the law specifically applies to private business. Paterson City exempted itself and all city employees from the new requirements.
Paterson joined with East Orange, Irvington, and Passaic, all of which implemented a sick leave ordinance in 2015. The ordinance provides paid sick leave to employees of private businesses. Employees can earn up to 40 hours (5 days) of sick leave is awarded to large businesses, those who employ 10 or more employees. Smaller companies and employers must provide up to 24 hours (3 days) of sick leave to their employees. The three exceptions for small business employees are those employees who are child-care workers, home health care and food service workers. Those workers are able to earn up to 40 hours of paid sick leave a year, regardless of the employer’s size. For businesses outside of Paterson City limits, it is important to note that although the ordinance applied to Paterson City businesses, it also applied to any employee who works inside of city limits for at least 80 hours a year. This means that out of state employers, as well as foreign employers, must be aware of these laws if any employee lands in Paterson for 80 hours or more each year, or roughly 1 ½ hours a week. This would include any employee who comes to Paterson for a couple of weeks a year, or on a regular short term basis. This would include sales reps, regional employees, and drivers who pass through the city in route.
Accrual of Sick Time
Employees earn paid sick leave at the rate of 1 hour for every 30 hours worked. Large employers who have 10 or more employees are required to allow employees to earn up to 40 hours (5 days) of sick leave each year. Smaller employers, those with under 10 employees must allow employees to earn up to 24 hours (3 days) of sick leave a year. As mentioned, the exception to the small business 24 hours rule is for employees in child care, home health care, and food service. There are no exceptions for small or single person employers. That means that a family with a regular babysitter must provide paid sick of up to 40 hours for their baby sitter. It’s also important to note that employee count is the determining factor, even if the employees are part time or temporary employees. Employee count is not based on Full Time Equivalent (FTE)
|Employer 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
For businesses that need to determine if they fall above or below the 10 employee number, managers need to look at the total number of employees on payroll. The Employee count is a flat employee count. Each person counts as an employee, even if they aren’t a full time employee. Temporary, Part Time and Full time employees all count equally. The ordinance doesn’t define full time equivalent (FTE) as a means of calculating employee size. Employers should look at their employees from the previous year. As an example, an organization with 11 part time employees is considered to be a large business, even though the FTE may land at about 4.5 FTEs. This is an unusual precedence in New Jersey that is contrary to other sick leave laws throughout the country. Employers based outside of Paterson need to be aware of this.
Paid Sick Leave Accrual
Paterson Sick Leave Law allows businesses to define the calendar year as any consecutive 12 month period. Managers should inform employees if the accrual year is different than the standard calendar year of January through December.
Under the ordinance all exempt employees are assumed to work 40 hours a week. If an exempt employee doesn’t work a full 40 hours a week, then sick leave is accrued based on their regular work week. If exempt employees work overtime, they still accrue sick leave based on the 40 hour work week. Exempt employees are defined according to the definitions of the Fair Labor Standards Act.
If employees don’t use all of their accrued sick leave, then up to 40 hours of sick leave can be rolled to the following year. Even when sick leave is rolled to the next year, employees are still restricted from using more than 40 hours of sick leave each year. The ability to roll over sick leave provides a way for workers to have access to sick leave earlier in the year, before they have had time to accrue new sick leave for the year. Employers 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
All businesses operating within city limits are covered by the Paterson Sick Leave Ordinance. It also covers businesses that aren’t based in the city, but who have occasional basis employees that work inside city limits for at least 80 hours a year. 80 hours a year averages to only 1 ½ hours a week in the Paterson City to be covered. It is vital that employers, who have employees who operate on an occasional-basis in the township, are aware of the law and that they maintain accurate records of employee time spent inside the city. All privately held businesses are covered, as are families and single employee employers. This includes temporary and seasonal employees, as well as full time and part time employees.
Employee Exceptions to Earned Sick Time
There are few exceptions to the Paterson Sick Leave Law. Paterson officials excluded the city and all employees from the sick leave law. Additionally, all other government employees, including Federal, State and Local governments are also excluded. Educational employees are exempt and are defined as an employee of any school district or the board of education. Lastly, all construction union employees are also exempt. Construction Union employees are all industries of reconstruction, demolition, alteration, custom fabrication, or repair work. Additionally those employees must be enrolled or have graduated from a registered apprenticeship program.
Allowable Uses for Earned Sick Leave
Paterson’s allowable reasons for sick leave mirror the other cities with sick leave laws in New Jersey. Sick leave covers both mental and physical health. Illness, injury and health conditions are covered and employees can use sick time to seek a medical diagnosis, obtain preventative care, treatment or medical care. Sick time can be used for the employee or for a family member’s health condition.
Likewise, circumstances deemed a public safety risk are also covered under sick time. If a public official closes the employee’s work or a school or place of care of the employee’s child or family member, then sick time is available. Similarly, 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: 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 Earned Sick Leave Ordinance recognizes biological, adopted, foster, and step relationships are recognized. For the employee’s child and parental relationships also include legal wards, in loco parentis and parents or children of spouses, domestic or civil union partners. Grandparents and a 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
New employees start accruing paid sick leave on their first date of employment. However, employees can be restricted by the employer from using sick leave until after 90 calendar days after work commences. The only exception to the 90 day grace period is for employees that are returning to work with the same employer within 6 months of when their employment concluded.
Previous employees retain their unused sick leave hours for 6 months after terminating employment. If the employee returns to work within 6 months, with the same employer, then the previously accrued sick leave must be reinstated to them. That employee will not have to pass through another 90 day waiting period, but is eligible to immediately start using accrued sick leave. 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 termination of employment, businesses are not required to payout sick leave.
Workers can use sick leave in 1 hour increments or in the smallest time increments that the employer’s payroll system accounts for other types of absences or leaves.
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
Other sick leave or paid time off policies are allowed under the Paterson Earned SIck Leave Law. If a business has an existing paid time off (PTO) policy that meets all the requirements of the sick leave law, then that leave is sufficient and can satisfy the law. 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. 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 are allowed to request written confirmation from an employee that sick leave was used for acceptable purposes. Further, after three consecutive instances of sick leave usage or 3 days of sick leave use, then the manager can request documentation from a health care professional that sick leave was necessary. The documentation cannot disclose the nature of the sick leave.
Employees must also provide reasonable notice when sick leave is foreseeable. However, employer policies can’t require notice of more than 7 days for sick leave.
Paterson 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
Companies must provide notification of employee rights to sick leave and their protection against retaliation when a new employee is hired. Furthermore, a poster, provided by the city, must be posted in the employee 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. Paterson City provides notices in English and Spanish. 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 are fined $2,000 per violation. Each day is considered to be a new infraction. Additionally, 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.
Time and Attendance and Record Retention
All employers affected by the Paterson Earned Sick Leave Law must maintain records of hours worked by employees, as well as sick leave accrual and usage. This is because the ordinance presumes that a violation has occurred if the business doesn’t maintain accurate or consistent records. Yet, 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. 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 Paterson 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.
Written by Annemaria Duran. Last updated Feb 22, 2017