New Jersey Employees’ Sick Leave Rights Have Recently Expanded
Many sick employees are currently protected from adverse employment treatment under the federally-mandated Family and Medical Leave Act (“FMLA”). Under the FMLA, an employee working for a covered employer may take up to 12 workweeks of unpaid leave each year with no threat of job loss if that employee is suffering from a serious health condition which renders him unable to perform his job. All public agencies are covered employers. However, the FMLA only applies to private employers who employed 50 or more employees for at least 20 workweeks during either the current or previous year.
But on October 29, 2018, New Jersey enacted New Jersey Earned Sick Leave Law (“ESL”). Standing in stark contrast to the FMLA, the ESL covers all New Jersey employers regardless of the business’s size. Thus, before the ESL’s recent enactment, an employee who worked for a private employer employing less than 50 employees would be ineligible from employment protections afforded to employees working for an employer with more than 50 employees. With the ESL’s enactment, this disparity stopped.
In addition to effectively expanding the FMLA, the ESL essentially expands an already-existing New Jersey-specific Act. The New Jersey Family Leave Act (“FLA”) was put into place to protect employees requiring leave to care for a family member. The FLA initially provided for unpaid leave and was enacted to enable an employee to care for another only, and not his own self. Eventually the FLA was expanded to mandate paid leave for employees, but has never been expanded to cover caring for the employee’s own self. With the ESL, however, this gap has been filled.
The ESL mandates that employees, whether full- or part-time, may take up to 40 hours of fully-paid sick leave each year. Similar to the FMLA’s qualifying events, the ESL’s qualifying events include caring for their own, or a family member’s, physical or mental health or injury. Moreover, the ESL allows employees to take time off to address domestic or sexual violence against themselves or a family member, to attend a child’s school-related meeting, and to pick-up a child from an emergency school or daycare closing. Similar to other New Jersey legislature aimed at employee protection, the ESL broadly defines “family member.” And similar to the FMLA, an employer can require advance notice prior to the date leave is to begin if the employee’s leave is readily foreseeable.
Employees accrue one hour of ESL per every 30 hours worked. ESL for existing employees can be used beginning February 26, 2019. Employees hired after the ESL’s October 29, 2018 enactment date can begin using ESL hours 120 days after the employee begins employment.
Per diem health-care employees, construction employees already governed by a collective bargaining agreement, and public employees who already received sick leave with full pay pursuant to any other law (such as the FMLA) are ineligible from the ESL’s protections.
If you previously thought you were without legal protection afforded to employees in larger businesses, your rights have changed. Your employer is obligated to provide you with these protections, without any interference or retaliation.