NJ Department of Labor Issues Proposed Regulations on Earned Sick Leave

In advance of the October 29, 2018 effective date for the New Jersey Paid Sick Leave Law (“Law”), which requires every employer to provide earned sick leave to each employee working in New Jersey, the New Jersey Department of Labor and Workforce Development filed proposed rules to implement the Law.

The proposed rules expand upon the manner in which the Department expects employers to implement the new law, particularly providing guidance on how an employer may credit earned sick time either through an accrual method (one hour of sick leave is earned and accrued for every thirty-hours hours worked) or an advancing method (providing an employee with at least 40 hours of earned sick leave at the start of a benefit year).  Interestingly enough according to the proposed rules employers be permitted exceptions from certain record-keeping requirements concerning an employee’s hours worked if the employer chooses to “presume, solely for the purpose of calculating earned sick leave accrual, that the employee works 40 hours per week.” N.J.A.C. 12:69-3.4 (proposed Sep. 13, 2018).  The proposed rules also state that all employees hired on or before October 29, 2018 must begin to accrue earned sick leave no later than October 29, 2018.

Moreover, the proposed rules provide a specific process that employers must follow for establishing and changing their benefit year applicable to all employees.  Notably, the Department’s proposed rules allow for  an employer’s compliance with the Law where “the employer provides each employee with paid time off (PTO), which may include leave types other than sick, such as personal leave and vacation leave, so long as the PTO meets or exceeds the requirements in the Law.”  This would allow employers to contemplate the use of a PTO policy so long as the employee is permitted to use all of the PTO for the any reason enumerated by the law and proposed rule N.J.A.C. 12:69-3.5. This provision appears to allow employers to implement or revise their leave policies to provide employees with a minimum of 40 hours of PTO, inclusive of vacation sick and personnel leave, however, employers would be advised to consult closely with employment counsel to ensure such changes are consistent with the proposed regulations upon their formal adoption by the Department.

Currently, a public hearing is scheduled on November 13, 2018 and the Department of Labor and Workforce Development is accepting comments through by December 14, 2018.  Attorneys from the Labor and Employment practice group of Capehart and Scatchard intend on attending the hearing and monitoring comments or proposed changes submitted to the New Jersey Department of Labor.  Should you have concerns or comments about the proposed rules, questions about the proposed regulations and the comment process, or like to discuss the impact and applicability of the Law and rules to your business, please do not hesitate to contact us.

Tags: New Jersey Paid Sick Leave Law