Newark Mayor: 'Proud to Support' Paid Sick Leave

Author: Melissa Burdorf, XpertHR Legal Editor

March 5, 2014

The City of Newark Mayor Luis Quintana expressed his proud support of paid sick leave for "Newark's hard-working families." On January 29, 2014, Mayor Quintana signed into law a paid sick leave ordinance that will require Newark private employers to provide an eligible employee with paid sick leave. This ordinance comes just a few months after Jersey City's mayor signed paid sick leave into law. The passage of these two municipal ordinances puts the heat on state legislators to take action on a pending bill which, if passed, would provide paid sick leave for all New Jersey employees.

When asked what he hopes to achieve with the Newark Ordinance, Mayor Quintana advised XpertHR:

A Newark employer would have to provide the paid sick leave starting May 29, 2014, or upon the expiration of a current collective bargaining agreement for employees working under such agreements, whichever is later.

Employer Coverage and Employee Eligibility Provisions

Under Newark's Ordinance:

• An employer with 10 or more Newark-based employees will be required to provide an eligible employee with a minimum of one hour of paid sick leave for every 30 hours worked, with a cap of 40 hours per year. A smaller employer will only need to provide up to a maximum of 24 hours of paid sick leave per year (this is different from Jersey City's ordinance, which requires smaller employers to provide unpaid sick leave);
• An employee (including a part-time or temporary employee) will be eligible for leave if he or she works at least 80 hours a year within Newark and requests leave for reasons such as:
  • The employee's or his or her family member's mental or physical illness, injury or health condition, including the need for medical diagnosis, preventative care or treatment; or
  • When the employee's workplace is closed by order of a public official or the employee is needed to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency.

The ordinance's definition of a family member is broader than the state New Jersey Family Leave Act (NJFLA) and the federal Family and Medical Leave Act (FMLA) (i.e., it includes grandparents, grandchildren and siblings in its definition of covered family members). In addition, an employee can take leave for more reasons than those covered under the FMLA or NJFLA (i.e., leave for a child whose school is closed due to a public health emergency).

A new employee will start to accrue leave on his or her first day of work. However the employee will not be able to use any accrued time until after his or her 90th calendar day of employment. An employer may choose to loan sick leave to an employee in advance of its accrual (i.e., frontloading).

Employer Notice Obligations

Both employees and employers have notice obligations under the ordinance. For example, an employer must provide written notice of the ordinance's requirements:

• To new hires at the start of employment;
• To existing employee by May 29, 2014, or as soon as practicable; and
• In English and the primary language spoken by 10 percent of the employer's workforce.

An employer must also conspicuously display a poster in accessible locations in the workplace in languages spoken by 10 percent of the workforce. The poster will be created by the Department of Child and Family Well-Being (CFWB).

Retaliation and Other Employee Protections

The Newark Ordinance specifically states that an employer cannot:

• Retaliate against an employee for requesting or taking paid sick leave under this ordinance and/or filing a complaint relating to the ordinance;
• Count paid sick leave as an absence that leads to discipline, demotion, suspension, termination or any other adverse action;
• Require an employee to provide a description or explanation of the illness or condition necessitating the leave; or
• Require an employee to find a replacement/coverage for any missed shifts.

Employer Planning

Before May, John Sarno, president and general counsel of the Employers Association of New Jersey (EANJ), recommends that Newark employers:

• Start reviewing employee rosters to see which employees, if any, will be covered by the ordinance (e.g., may apply to employees who only work in Newark occasionally or telecommuters);
• Prepare the required notice and check the CFWB's site for the poster;
• Review PTO, attendance and/or sick leave policies to ensure compliance with the ordinance (e.g., ensure leave policies provide the same amount of leave and have the same terms and conditions as the ordinance);
• Train HR, managers and supervisors on the requirements of the ordinance, particularly the notice and anti-retaliation requirements;
• Ensure time and payroll records are detailed to reflect the amount of sick leave accrued and used by employees; and
• Consider sending a written warning prior to terminating an employee who is continually out under the guise of the ordinance.

State Trends

There are many other efforts to require paid sick leave in other US states (i.e., California, Massachusetts, Nebraska, Oregon and Vermont). The new mayor of New York City is pushing through an expanded version of the paid sick leave law, set to begin on April 1, 2014. The District of Columbia recently expanded its paid sick leave to cover more workers. A bill to ensure that all US employees can take paid sick leave has also been introduced but has not had a lot of traction.

While there is a trend for paid sick leave, some states have blocked (preempted) such laws at the municipal level (e.g., Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Tennessee and Wisconsin).