Employee’s Sick Leave and Family Leave Rights
New Jersey has some of the most comprehensive earned sick leave, temporary disability, and family leave laws in the country. Since the emergence of the Covid-19 pandemic, however, employees are in need of extensive sick leave and family leave rights now more than ever. More specifically, parents are in need of extra support where they have childcare issues due to unavailability of caregivers or school closures. Because of this, the federal government passed the Families First Coronavirus Response Act (FFCRA) to provide extended emergency sick leave and emergency family leave to all states. Below, we will discuss New Jersey employee’s earned sick leave and family leave rights in addition to the extra protections provided by the FFCRA for those struggling with childcare.
New Jersey Earned Sick Leave Law
The New Jersey Earned Sick Leave Law requires employers of all sizes to provide most employees with up to 40 hours of earned sick leave per year. You are not covered under this law if you are employed in the construction industry under a union contract or if you are a per diem health care worker. Public employees provided sick leave at full pay under any other NJ law and independent contractors who do not meet the definition of an employee under NJ law are also not covered.
The earned sick leave hours can be used to care for yourself or a loved one in need. Employees often use their earned sick leave to: attend a child’s school related event, or to take care of children when school or childcare is closed due to an epidemic or public health emergency. You may be required to provide reasonable documentation if you use earned sick leave three or more consecutive workdays.
Accrual of Earned Sick Leave
You accrue 1 hour of earned sick leave for every 30 hours of work. Again, you can earn up to a maximum of 40 hours of leave per benefit year. Alternatively, your employer may award you 40 hours of earned sick leave upfront. A “benefit year” refers to any regular and consecutive 12-month period determined by your employer. When you are hired, you must receive a written notice of your right to earned sick leave which will state the benefit year period.
Payment and Unused Earned Sick Leave
Your rate of pay while using earned sick leave days must be your regular hourly rate, but no less than the state minimum wage. If you are not paid hourly, visit the “Payment of Earned Sick Leave” tab here to learn more.
If you did not use all of your earned sick leave, you can carry over up to 40 hours of unused earned sick leave into the next benefit year. However, your employer is required to only allow you to use up to 40 hours of leave per year. Instead, your employer may offer to pay you for your unused earned sick leave at the end of the benefit year.
Your employer cannot retaliate against you for requesting or using earned sick leave. In fact, most acts of retaliation against an employee are illegal. Retaliation includes any adverse action against you for exercising or attempting to exercise any right guaranteed under the law. Additionally, your employer cannot require you to search for or find a replacement worker to cover the hours during which you used your earned sick leave.
New Jersey Family Leave Act
The New Jersey Family Leave Act provides certain employees with up to 12 weeks of job-protected leave during any 24 month period. To receive the NJFLA benefits, you must work for a state or local government agency, or for a company with 30 or more employees worldwide. Also, you must have been employed by the company for at least 1 year and have worked at least 1,000 hours in the past 12 months. Once you have earned the 12 weeks of family leave, you can take a consecutive block of up to 12 weeks of leave, or you can take leave on an intermittent or reduced schedule. Once you return to work, you are generally entitled to return to the same position you held before you left. Your employer may not retaliate against you because you took or attempted to take leave under the NJFLA.
What NJFLA Leave Can Be Used For
Leave under the NJFLA can be used to: care for or bond with a child, as long as they are within 1 year of being birthed or placed for adoption or foster care. Any parent is allowed to take leave under NJFLA to bond with a newborn or care for a child just placed for adoption or foster care.
The leave can also be used to care for a family member (including children), with a serious health condition, or who has been isolated or quarantined due to a suspected exposure to a communicable disease during a state of emergency. For reference, Covid-19 is considered both a serious health condition and is classified as a communicable disease. Lastly, the leave can be used, specifically, to provide required care or treatment for a child during a state of emergency if their school or place of care has been closed by order of a public official due to an epidemic or other public health emergency, including Covid-19.
NJFLA is Not the Same as FMLA
NJFLA is not the same as the Federal Family Medical Leave Act (FMLA). You will not use up your NJFLA leave if you are taking leave to care for your own serious medical condition. Therefore, in some situations, you may be able to take 12 weeks of FMLA leave to care for your own condition and then an additional 12 weeks of NJFLA leave to care for a family member all within the same 12 month period. If you are pregnant, or just had a baby, you can take up to 12 weeks for pregnancy and recovery under the FMLA. Then, you can take an additional 12 weeks of NJFLA leave to bond with and care for your newborn after your doctor certifies you are fit to return to work, or after you have exhausted your FMLA leave, whichever is earlier.
Families First Coronavirus Response Act
The Families First Coronavirus Response Act was set forth by the federal government to expand on employee’s rights to emergency sick and family leave related to Covid-19. Currently, this act is only applicable until December 30, 2020. Generally, if you work for a company with fewer than 500 employees, your employer must provide paid sick leave and expanded family and medical leave through the FFCRA. For more information about the 500 employee threshold, visit this link. For more information regarding small business exemption from FFCRA, click here.
For those struggling to find care for your child due to school closures or lack of available childcare because of Covid-19, FFCRA would provide you with up to 80 hours of paid sick leave and up to an additional 10 weeks of paid expanded family and medical leave. In addition to extra paid sick leave for your own health conditions, the FFCRA mandates employers provide all employees with up to 80 hours of paid sick leave, at two-thirds your regular rate of pay, if you are unable to work because of a bonafide need to care for a child under 18 years of age whose school or childcare provider is unavailable for reasons related to Covid-19. Furthermore, you may be eligible for an additional 10 weeks of paid family and medical leave, at two-thirds your regular rate of pay. To qualify for the additional 10 weeks, you must have been employed for at least 30 calendar days. You can use the 10 weeks to, again, care for a child whose school or childcare provider is unavailable for reasons related to Covid-19.
Have Your Rights Been Violated?
If you feel your rights have been violated under any of three laws discussed above, contact David Kaplan for a free legal consultation. With 30+ years of experience, David Kaplan, attorney at law, is dedicated to providing you with the compassionate legal care you deserve. He handles each case personally and will be able to provide you with legal insight specific to your case. For more information, or to book your free consultation, visit David’s website.