Yesterday, the New Jersey Department of Labor issued Frequently Asked Questions and answers on the Paid Sick Leave Act. These FAQs address which employees are covered, whether out-of-state employers are covered, how to define a benefit year, and other questions.
The FAQs address the question of advancing leave for part-time employees. The guidance states that employers may reasonably estimate the number of hours a part-time employee will work. However, because the employee may work more hours than anticipated, the employer must track all hours of the part-time employee to ensure they are provided with all sick time they would have actually earned under the accrual method. There is no ability of an employer to “take back” sick time that was not actually earned. Similarly, the guidance allows pro-rating of the advancement of sick leave for employees who start partway during a benefit year.
The guidance also addresses and specifically approves treating different categories of employees differently. For example, advancing 40 hours of sick leave for full-time employees and using the accrual method for part-time employees.
In a new development, the guidance requires employers to allow employees to use sick time to cover assigned overtime hours. The guidance states: “An employer must allow an employee to use earned sick leave for any overtime hours that the employee was scheduled to work.” Accordingly, the employer would be required to pay the employee for the overtime hours not worked and would charge the employee’s accrued sick time for those hours. Under wage and hour law, this unworked time would not have to be paid at time-and-a-half since the employee did not actually work the hours. Employers should carefully review their overtime policies to ensure they are in compliance with the Paid Sick Leave Act and to further ensure that their own policies would not require them to pay time-and-a-half in the event that an employee chooses to use paid sick leave to cover scheduled overtime.
See this link for all the FAQs: https://www.state.nj.us/labor/forms_pdfs/lwdhome/Legal/earnedsickleave.pdf
This Act has made significant changes to the obligations of employers regarding sick leave and all employers should review its requirements carefully to ensure compliance. If you have further questions regarding the FAQs about the New Jersey Paid Sick Leave Act, please do not hesitate to contact Laddey, Clark & Ryan’s Employment and Labor Practice Group: Thomas Ryan, Esq. (firstname.lastname@example.org), Ursula Leo, Esq. (email@example.com), Jessica Jansyn, Esq. (firstname.lastname@example.org), or Nicole Tracy, Esq. (email@example.com). Our attorneys can also be reached by phone at (973) 729-1880.