Date: March 25, 2020

As previously reported the Sick Leave Law applies to all employers (regardless of size) with NJ-based employees and all NJ employees (full and part-time), excluding construction industry employees covered by a collective bargaining agreement, per diem healthcare workers, and public employees who had this benefit.

Employees accrue and may use up to 40 hours of paid “sick leave” in an employer-designated 12- month period (a “benefit year”). At the end of a benefit year, employers must either payout, or allow employees to carry over to the next benefit year, up to 40 hours of accrued, unused leave.

Coronavirus.  Significantly, “sick leave” may be used for such reasons as:

  1. time required for the diagnosis, treatment or preventative care of the employee or his/her family member; and
  2. absences due to a public health emergency that caused the closure of the employee’s workplace or the school or childcare facility of the employee’s child, or that requires a member of the employee’s family to seek care.

The New Jersey Department of Labor and Workforce Development (“NJDOL”) recently posted a Question & Answer section on its website that specifically addresses the use of sick leave during the COVID-29 emergency available here.

New Rules. On January 6, 2020, the NJDOL issued new “Earned Sick Leave Rules” over a year after the Sick Leave Law went into effect on October 29, 2018. The 50+ page document attempts to provide clarity and to address employer and employee’s questions and concerns.

  • Ban Use it or Lose It Policies. The new “Rules” make it clear that employers may not adopt a “use it or lose it” policy.  However, since the employer elects whether to payout or permit employees to carry over earned/unused sick leave, and employees cannot use more than 40 hours of leave in a benefit year, an employer’s choice may result in the carrying over of leave that the employee will not be able to use.
  • Payment at Separation. The Rules also specify that “upon an employee’s termination, resignation, retirement, or other [employment] separation,” an employer is not required to “payout of unused earned sick leave” unless an employer policy or agreement provides otherwise.
  • Anti-Retaliation. The Rules prohibit employers from retaliating “against an employee because the employee requests or uses earned sick leave in accordance with the Act… or the employer’s own earned sick leave policy,” but does not provide for job protection (which may be available under the federal Family and Medical Leave Act and New Jersey’s Family Leave Act.

Job Protection. On March 20, 2020, New Jersey enacted an Anti-Retaliation Protection Law that prohibits retaliation and includes job protection for workers impacted by COVID-19. Although the law was enacted in response to the COVID-19 emergency, the law does not include a sunset provision. The law does not, however, require employees be paid out for earned/unused leave upon termination.