Author: Melissa Burdorf, XpertHR Legal Editor

UPDATE: On Monday, October 21, Jersey City Mayor Steven Fulop signed into law the below sick leave ordinance.

October 10, 2013

Jersey City's Council passed an ordinance that would make Jersey City the first New Jersey city and the sixth US city to require private employers to provide paid sick leave. If signed by the Mayor, the ordinance becomes effective January 24, 2014 for employees who do not work under a collective bargaining agreement (CBA). For employees who do work under a CBA, the ordinance would become effective at the expiration of the agreement.

Under the ordinance, Jersey City employers with 10 or more employees would be required to offer up to 40 hours of paid sick leave each year to employees who work 80 hours or more in Jersey City. Smaller employers would be required to offer unpaid sick leave. Employees, including part-time employees, would accumulate sick leave based on hours worked, up to a total of 40 hours. Although employees would start to accrue leave on their first day of work, employees would not be eligible to use the earned time until their 90th day of employment.

Eligible employees would be permitted to take leave to:

  • Care for their own or a covered family member's illness or injury; or
  • Care for a child whose school or daycare is closed due to a public health emergency. This type of leave is typically not covered by the New Jersey Family Leave Act (NJFLA) or the federal Family and Medical Leave Act (FMLA).

Covered family members include the employee's spouse (i.e., anyone to whom the employee is legally married in New Jersey or any other state), domestic or civil union partner, child, parent, grandparent, grandchild or sibling. It also includes the child, grandchild, parent or grandparent of an employee's spouse or domestic or civil union partner.

Employees would be required to give their employer notice of their need for leave "as soon as practicable" and employers may require written documentation to prove the employee's need for leave if an employee uses more than three consecutive days of sick leave. Documentation may be as simple as a medical note indicating leave is necessary. Employers would not be allowed to require employees to provide a description or explanation of the illness or condition necessitating their leave.

Employers would be required to provide employees with notice of the ordinance at the start of employment and as soon as practicable for employees already employed. Employers will also need to conspicuously post information about the ordinance in all Jersey City locations. The form of the notice and poster will be issued by the Jersey City's Department of Health and Human Services.

If signed, the ordinance will prohibit employers from:

  • Requiring an employee to find a replacement employee for his or her shift;
  • Denying an employee sick time because the employee's request was made orally;
  • Requiring disclosure of details relating to the employee's or an employee's covered family member's medical condition as a condition of allowing sick leave;
  • Retaliating or discriminating against an employee because the employee requests leave or complains about the employer's leave practices or policy; or
  • Taking any adverse employment action (e.g., fail to promote, demote, etc.) because the employee uses his or her sick time.

Employees will be able to file a lawsuit against their employer for violations of the ordinance (i.e., a private right of action). A court will assume the allegations contained in an employee's complaint are true, unless the employer can prove otherwise (i.e., rebuttable presumption), if an employer takes an adverse action against an employee within 90 days of the employee doing any of the following:

  • Filing a complaint;
  • Informing any person about an alleged violation;
  • Cooperating in the investigation or prosecution of any alleged violation;
  • Opposing any policy or practice made unlawful by the ordinance; or
  • Informing any person about rights available under the ordinance.

Opponents of this ordinance are concerned about reduced workplace productivity and increased costs, especially for small business owners.

Those who support paid sick leave feel like this is a matter of public concern and good for employee retention. For instance, this law would allow a food service worker to stay home when sick, which will help stop the spread of germs. Also, parents would be able to stay home to care for their children, which may incentivize a high performer to stay on the job.

According to a press release, Jersey City's Mayor Steven M. Fulop, a big supporter of paid sick leave, believes that this ordinance will help increase Jersey City's productivity while allowing employees to keep healthy and care for their families without the fear of losing their job or wages.

Supporters are also hoping to get the State Assembly to pass a statewide law like Jersey City's, which would provide employees with up to seven days of paid sick time per year. Similar initiatives are taking place in Tacoma, Washington and Massachusetts.

Salvador Simao, a partner in the New Jersey office of Ford Harrison, LLP, a national labor and employment law firm, recommends that prior to the ordinance's effective date, Jersey City employers should:

  • Review employee rosters and determine which employees, if any, will be eligible for sick leave. Then, once the ordinance is effective, issue the required notice to such employees;
  • Review and revise leave, PTO, sick, vacation and/or attendance policies and practices to bring them into compliance with the requirements of the ordinance (i.e., keeping in mind, for example, that this ordinance permits an employee to use sick time for a broader category of family members than what is allowable under the federal family and medical leave act (FMLA) or the New Jersey Family Leave Act (NJFLA));
  • Create a recordkeeping system to track all forms of sick leave (e.g., FMLA, NJFLA, NJ SAFE Act, etc.). This includes ensuring time and payroll records reflect the amount of sick leave accrued and used by employees;
  • Train HR and managers on the law's requirements with respect to documentation, tracking time, notice, anti-retaliation/discrimination and recordkeeping; and
  • Provide and post notice of the law (which will be available from the Jersey City Department of Health and Human Services) in a conspicuous and accessible place.

Ford Harrison attorneys will be speaking more about Jersey City's ordinance and other employment issues at their year-end labor and employment workshop on December 5.