Risk & Business Magazine JGS Insurance Magazine Winter 2018 | Page 29

PAID SICK LEAVE ACT foreseeable sick leave on certain days or where it “unduly disrupts” the employer’s operations. Employers may require “reasonable documentation” for absences of three or more days, so an employer may not demand supporting documentation—or proof — for an employee’s use of fewer than three consecutive days unless the employee uses earned sick leave on a prohibited date. Meanwhile, employers must post a notification of employee rights under the Act in a conspicuous place. Employers also must provide written notice to their employees of their rights under the Act, including within 30 days after the department has issued a model notice, at the time of hiring and upon request by an employee. Employers also must track their employees’ hours worked, earned sick time accrued and sick time used, and must maintain those records for five years under the Act. Employer compliance with these requirements will be subject to audit by the New Jersey Department of Labor and Workforce Development. EMPLOYERS WITH PTO POLICIES Employers having existing paid time off (PTO) policies that satisfy the Act’s minimum requirements and include personal days, vacation days, and sick days will comply with the Act if: • employees may use paid time off for the reasons stated in the Act; and, • the PTO is accrued at a rate equal to or greater than the rate required by the Act. Employers should review their PTO policies to confirm their compliance. HOW CAN SICK LEAVE BE USED? The Act includes a list of reasons employees may use earned sick time. The list includes, but is not limited to, the following: • the medical needs of the employee or the employee’s family member(s); • absences, treatment, counseling, and other matters relating to or arising from the employee, or the employee’s family member, being a victim of domestic or sexual violence; • closure of an employee’s workplace, school, or childcare due to a public health emergency; or, • time needed by the employee to attend a school-related conference, meeting, function, or other event. The most important takeaway here for employers is the recognition that the sick leave law is not limited to an employee’s use for “sick” leave. PAYOUT FOR TERMINATED EMPLOYEES Unless otherwise required by company policy, employment contract, or collective bargaining agreement, the Act does not require that unused accrued sick leave be paid to an employee at separation. PENALTIES FOR NONCOMPLIANCE Employers should fear enforcement under the Act. Employers can be prosecuted in different ways and for different reasons. This includes, but is not limited to, private rights of action by employees for discrimination, retaliation, and violations of the Act and for recordkeeping violations. implement an accrual or annual method of earning sick leave, the applicable benefit year and the increments in which employee leave may be taken. Additionally, employers should also prepare to post the appropriate notice in their workplace and deliver the appropriate disclosures to their employees. When in doubt, please consult with your attorney to ensure compliance with the Act. An employer that violates the Act will be subject to the penalties and remedies afforded to employees under the New Jersey Wage and Hour Law, which includes monetary damages and attorneys’ fees and costs, plus liquidated damages in an amount equal to the unpaid leave. HOW SHOULD EMPLOYERS PREPARE FOR PAID SICK LEAVE? At this point, the Act is still clear as mud. Many questions are still unanswered, and this summary is merely the tip of the iceberg. Given the potential exposure to liability and other consequences arising from violations and lack of compliance, employers should revisit their employee handbooks and review their employee PTO, attendance, leave, and disciplinary policies. Employers also should reevaluate their recordkeeping requirements to confirm compliance with the Act and should advise their managers and supervisors of the change in the law and train/educate them accordingly. Employers also have several decisions to make, including whether to BY: BARRY E. FIELDS VICE PRESIDENT OF EMPLOYEE BENEFITS JGS INSURANCE Barry Fields has over 26 years of employee benefits experience advising clients in a wide range of industries, professional and industrial, public and private, throughout the United States and worldwide. Barry specializes in providing full-service benefits consulting to clients including program design, compliance, plan funding, underwriting, wellness programs, employee communications, benefits administration, employee advocacy and the use of effective strategies in benefits management. 29