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Your Employees Are Taking a Sick Day but They Aren't Sick, and that's Okay under New Jersey's Paid Sick Leave Act 
By Andrew W. Li on October 23, 2018

For employers and small business owners, employee sick time is no sneezing matter.

At least one study suggests that employees who come to work sick costs the country over $160 billion dollars in lost or lowered productivity. At the same time, however, employers are justifiably concerned that employees may be using sick leave as “free” days, taking paid time off when they aren’t actually sick, which also leads to lost productivity.

For many employers, one way to curb the inappropriate use of paid sick leave has been to limit the use of “sick days” to only those times when the employee is ill. Some employers have adopted policies which require their employees to provide medical documentation – a “doctor’s note” – showing that the employee was actually sick. Undocumented time -- when the employee wasn’t ill -- might be charged against the employee’s personal or vacation days, or be considered as an unpaid day off.

However, under the recently enacted Paid Sick Leave Act, all New Jersey employees are entitled to accrue one hour of paid sick leave for every 30 hours worked, for up to a maximum of 40 hours of paid sick leave each benefit year. Moreover, employers must allow their New Jersey employees to use their accrued paid sick leave time:

  • for the diagnosis, care, treatment and/or recovery from the employee’s mental or physical illness, injury or other adverse health condition;
  • for the employee to aid or care for a family member’s diagnosis, care, treatment and/or recovery from a mental or physical illness, injury or other adverse health condition;
  • for preventive medical care for the employee or their family member;
  • for absences caused by the employee or their family member being the victim of domestic or sexual violence, including time for the employee or their family member to seek medical attention to recover from physical or psychological injury or disability caused by domestic or sexual violence, obtain services from a designated domestic violence agency or other victim services organization, receive psychological or other counseling, relocate, and/or engage legal services, obtain a restraining order, and/or prepare and participate in civil or criminal legal proceeding related to the domestic or sexual violence;
  • for any time when the employee’s workplace, or the school or childcare place for the employee’s child, has been closed by a public official due to an epidemic or other public health emergency;
  • for any time when a public health authority has determined that the presence of the employee, or a family member in the employee’s care, would jeopardize the health of others;
  • for the employee to attend their child’s school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff member; or
  • for the employee to attend a school meeting in connection with their child’s health conditions or disability.

Keep in mind that employers who offer fully paid time off, including personal days, vacation days, and sick days, which is the equivalent, or “better” than the minimum provided by the Paid Sick Leave Act, still must allow their employees to take that time off for any of the reasons listed above.

So, even if an employer provides their employees with more than 40 hours of fully paid sick leave each year, the employer cannot limit the use of sick leave to only those times when the employee is ill. Instead, to be compliant with the Paid Sick Leave Act, an employee must be permitted to use the paid time off provided by an employer for any of the reasons designated by law.

With violations of the Paid Sick Leave Act -- which goes into effect on October 29, 2018 -- potentially punishable by fines up to $1000 and administrative penalties, fees and interest, employers and small business owners would be well-advised to consult with their labor and employment attorney to ensure compliance.

For more information and guidance on this topic, please contact the attorneys in Parker McCay’s Employment and Labor Department.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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