Current through Register Vol. 56, No. 18, September 16, 2024
(a) An employer shall
permit an employee to use earned sick leave for any of the following reasons:
1. Time needed for diagnosis, care, or treatment
of, or recovery from, an employee's mental or physical illness, injury, or other
adverse health condition, or for preventative medical care for the
employee;
2. Time needed for the
employee to aid or care for a family member of the employee during diagnosis, care,
or treatment of, or recovery from, the family member's mental or physical illness,
injury, or other adverse health condition, or during preventative medical care for
the family member;
3. Absence necessary
due to circumstances resulting from the employee, or a family member of the
employee, being a victim of domestic or sexual violence, if the leave is to allow
the employee to obtain for the employee or the family member; medical attention
needed to recover from physical or psychological injury or disability caused by
domestic or sexual violence; services from a designated domestic violence agency or
other victim services organization; psychological or other counseling; relocation;
or legal services, including obtaining a restraining order or preparing for, or
participating in, any civil or criminal proceeding related to the domestic or sexual
violence;
4. Time during which the
employee is not able to work because of a closure of the employee's workplace, or
the school or place of care of a child of the employee, by order of a public
official due to an epidemic or other public health emergency, or because of the
issuance by a public health authority of a determination that the presence in the
community of the employee, or a member of the employee's family in need of care by
the employee, would jeopardize the health of others; or
5. Time needed by the employee in connection with
a child of the employee to attend a school-related conference, meeting, function, or
other event requested or required by a school administrator, teacher, or other
professional staff member responsible for the child's education, or to attend a
meeting regarding care provided to the child in connection with the child's health
condition or disability.
(b)
Except under (d) or (e) below, an employee shall not be eligible to use earned sick
leave until the 120th calendar day after the employee commences
employment.
(c) Following the
120-calendar-day period set forth in (b) above, the employee shall be permitted to
use earned sick leave immediately upon either accrual under N.J.A.C. 12:69-3.3 or
the earned sick leave having been advanced to the employee under N.J.A.C.
12:69-3.4.
(d) Where the employee has
accrued earned sick leave prior to October 29, 2018, the 120-calendar-day waiting
period for use of earned sick leave set forth in (b) above shall not
apply.
(e) The employer may permit an
employee to use earned sick leave prior to the 120-calendar-day period set forth in
(b) above.
(f) Where the employee's need
to use earned sick leave is foreseeable, the employer may require advance notice,
not to exceed seven calendar days prior to the date the leave is to begin, of the
employee's intention to use the leave and its expected duration.
1. For purposes of this subsection, the need to
use earned sick leave shall be considered "foreseeable," when the employee is able
to predict or know in advance that he or she will need to use earned sick leave,
such as a scheduled doctor's visit, a regularly occurring medical treatment, or
regularly scheduled therapy appointment.
(g) Where the employee's need to use earned sick
leave is foreseeable, the employee shall make a reasonable effort to schedule the
use of earned sick leave in a manner that does not unduly disrupt the operations of
the employer.
1. For purposes of this subsection,
the need to use earned sick leave shall be considered "foreseeable," when the
employee is able to predict or know in advance that he or she will need to use
earned sick leave, such as a scheduled doctor's visit, a regularly occurring medical
treatment, or regularly scheduled therapy appointment.
(h) Where the employee's need to use earned sick
leave is foreseeable, the employer may prohibit the employee from using earned sick
leave on certain dates.
1. For purposes of this
subsection, the need to use earned sick leave shall be considered "foreseeable,"
when the employee is able to predict or know in advance that he or she will need to
use earned sick leave, such as a scheduled doctor's visit, a regularly occurring
medical treatment, or regularly scheduled therapy appointment.
2. The "certain dates" on which the employer may
prohibit employees from using foreseeable earned sick leave shall be limited to
verifiable high-volume periods or special events, during which permitting the use of
foreseeable earned sick leave would unduly disrupt the operations of the employer.
i. An example of a high-volume period would be,
for an airline industry employer, the period during which they experience a
predictable increase in customer activity (which is to say, flying) in and around a
particular holiday, like Thanksgiving.
ii. An example of a special event would be, for a
manufacturer of retail products, the day or week during which it is making a new
product available for the first time (that is, a product launch).
3. The employer shall provide
reasonable notice to its employees of those "certain dates" on which its employees
are prohibited from using foreseeable earned sick leave.
(i) Where the employee's need to use earned sick
leave is not foreseeable, the employer may require an employee to provide notice as
soon as practicable, of the employee's intention to use the leave and its expected
duration.
1. For purposes of this subsection, the
need to use earned sick leave shall be considered "not foreseeable," when an
employee requires time to care for, or obtain medical treatment for, themselves or a
family member that was not reasonably anticipated.
i. An example of a need to use earned sick leave
that is "not foreseeable," is when an employee wakes up in the morning with a fever
and does not feel well enough to report for work that morning.
2. As a condition to requiring an employee to
provide notice to the employer of the need to use earned sick leave that is not
foreseeable, the employer must first notify the employee of this requirement. Where
the employer has failed to so notify the employee, the employee must be permitted to
use the "not foreseeable" earned sick leave without having provided the employer
with any prior notice, practicable, or otherwise.
(j) Where the employee's need to use earned sick
leave is not foreseeable and the employee seeks to use such earned sick leave during
any of the "certain dates" described in (h) above, or where the employee uses earned
sick leave for three or more consecutive days, the employer may require the employee
to provide reasonable documentation that the leave is being taken for a permissible
purpose under (a) above.
1. The term "reasonable
documentation" shall have the following meanings under the following circumstances:
i. If the earned sick leave is sought by the
employee under (a)1 or 2 above, "reasonable documentation" shall mean documentation
signed by a health care professional who is treating the employee or the family
member of the employee indicating the need for the leave and, if possible, the
duration of the leave;
ii. If the earned
sick leave is sought by the employee under (a)3 above, "reasonable documentation"
shall mean medical documentation; a law enforcement agency record or report; a court
order; documentation that the perpetrator of the domestic or sexual violence has
been convicted of a domestic or sexual violence offense; certification from a
certified Domestic Violence Specialist or a representative of a designated domestic
violence agency or other victim services organization; or other documentation or
certification provided by a social worker, counselor, member of the clergy, shelter
worker, health care professional, attorney, or other professional who has assisted
the employee or family member in dealing with the domestic or sexual
violence;
iii. If the earned sick leave
is sought by the employee under (a)4 above, "reasonable documentation" shall mean a
copy of the order of the public official or the determination by the health
authority;
iv. If the earned sick leave
is sought by the employee under (a)5 above, "reasonable documentation" shall mean
tangible proof of the school-related conference, meeting, function, or other event
requested or required by a school administrator, teacher, or other professional
staff member responsible for the education of the employee's child; or tangible
proof of the meeting regarding care provided to the child of the employee in
connection with the child's health conditions or disability.
(k) Except where an employer exercises
its right, under the limited circumstances outlined in (j) above, to require the
employee to provide reasonable documentation that the leave is being taken for a
permissible purpose under (a) above, (that is, foreseeable earned sick leave during
the "certain dates" described in (h) above, or requests for three or more days of
earned sick leave), all requests by employees to use earned sick leave shall be
treated by the employer as presumptively valid.
(l) Where an employee would be eligible to use
earned sick leave under the Act and this chapter, the employee may, only with the
employer's consent, choose to work additional hours to compensate for the hours of
work missed, rather than use earned sick leave.
(m) Where an employee would be eligible to use
earned sick leave under the Act and this chapter, the employer shall be prohibited
from:
1. Requiring an employee to work additional
hours to compensate for the hours of work missed;
2. Requiring an employee to use earned sick leave;
or
3. Requiring an employee, as a
condition to using earned sick leave, to search for or find a replacement worker to
cover the hours during which the employee will be using earned sick leave.
(n) Where an employee has been
transferred to a separate division, entity, or location, but remains employed by the
same employer, and where, pursuant to N.J.A.C. 12:69-3.3(f) or 3.4(b), the employee
has retained all earned sick leave accrued or advanced while working with the prior
division, entity, or location, the employee's entitlement to use the accrued or
advanced earned sick leave shall not be adversely affected.
1. For example, if prior to a transfer to a
separate division of the employer, the employee had worked for the employer for more
than 120 calendar days, the employee would immediately upon the transfer be
permitted to use his or her accrued or advanced earned sick leave and would not be
required to wait 120 calendar days after the transfer had occurred to use his or her
accrued or advanced earned sick leave.
(o) Where an employee is terminated, laid off,
furloughed, or otherwise separated from employment with the employer, where the
employee is reinstated or rehired within six months of the separation, and where
pursuant to N.J.A.C. 12:69-3.3(g) or 3.4(c), any unused earned sick leave accrued or
advanced by the employee prior to the separation has been returned to the employee
upon rehire or reinstatement, the employee's entitlement to use the accrued or
advanced earned sick leave shall not be adversely affected; which is to say, the
employee shall be treated for the purpose of using his or her accrued or advanced
earned sick leave as if there had been no break in employment.
(p) Where a successor employer takes the place of
an existing employer, and where pursuant to N.J.A.C. 12:69-3.3(h) or 3.4(d), all
employees of the predecessor employer have retained all earned sick leave accrued or
advanced while working for the predecessor employer, the employee's entitlement to
use accrued or advanced earned sick leave shall not be adversely affected.
1. For example, if prior to a transfer to a
separate division of the employer, the employee had worked for the employer for more
than 120 calendar days, the employee would immediately upon the transfer be
permitted to use his or her accrued or advanced earned sick leave and would not be
required to wait 120 calendar days after the transfer had occurred to use his or her
accrued or advanced earned sick leave.
(q) An employer may choose the increments in which
its employees may use earned sick leave, provided that the largest increment of
earned sick leave that an employee may be required to use for each shift for which
earned sick leave is used shall be the number of hours the employee was scheduled to
work during that shift.
(r) Nothing in
this chapter shall be construed to require an employer to permit the use of earned
sick leave for a purpose other than one identified in (a) above.
(s) Nothing in this chapter shall be construed to
prohibit an employer from taking disciplinary action against an employee who uses
earned sick leave for a purpose other than one identified in (a) above.
(t) The employer shall not be required to permit
the employee to use more than 40 hours of earned sick leave in any benefit
year.
