New Jersey Earned Sick Leave Law: More Questions than Answers
On October 29, 2018, New Jersey’s Earned Sick Leave Act (the Act) became effective.1 That Act applies to every employer in the State of New Jersey.2 However, excluded from the definition of “employer” is “a public employer that is required to provide its employees with sick leave with full pay pursuant to any other law, rule, or regulation of this State.”3 An employer is considered in compliance with the Act if it offers fully paid time off which includes, but is not limited to, sick, vacation and personal days.4 Under the Act, an employee is defined as “an individual engaged in service to an employer in the business of the employer for compensation.”5 However, for purposes of the Act, an employee does not include certain construction industry workers, certain per diem healthcare employees, or “a public employee who is provided with sick leave with full pay pursuant to any other law, rule, or regulation of this State.”6
Sick leave earned under the Act may be used for the employee’s own physical or mental illness, to care for a family member being treated for a physical or mental illness, to care for the employee or a family member who may be the victim of domestic or sexual violence, to use when the workplace or the place where the employee’s child is being cared for is closed due to an epidemic or public health emergency, or as needed to attend a school conference or meeting with the employee’s child.7
Under the education laws, school districts are already required to provide paid sick leave to all “steadily employed” employees. The relevant law applicable to school districts and employees is N.J.S.A. 18A:30-2, which provides:
All persons holding any office, position, or employment in all local school districts, regional school districts or county vocational schools of the state who are steadily employed by the board of education or who are protected by tenure in their office, position, or employment under the provisions of this or any other law, except persons in the classified service of the civil service … shall be allowed sick leave with full pay for a minimum of 10 school days in any school year. (emphasis added).
As to which employees meet the definition of “steadily employed” under this statute, districts must look to prior court decisions. The Commissioner has held that the term “steadily employed” means “regular, continuous employment for the entire school year, for less hours daily or for fewer days per week than would be required for full-time employment.”8 As an example, the State Board has held that an individual appointed as an assistant football coach is not “steadily employed” under the statute.9 In another case, the Appellate Division suggested that home instructors hired by a school district on an hourly “as needed” basis, and who do not receive contracts or benefits, are likewise not “steadily employed” under the statute.10 It seems clear, at least under the education laws, that employees such as substitutes and other “on call” employees would not be entitled to sick leave. However, that does not exempt them from sick leave under the Act.
Since school districts already provide sick leave to a majority of their employees, there was initially some thought that the Act would not apply to districts. However, the New Jersey Department of Labor disabused districts of this thought when it issued its FAQ in which it states:
The public employer does not get a blanket exemption from coverage under the Earned Sick Leave Law for all of its employees, because some or even most of its employees are provided with sick leave at full pay under a law or rule of New Jersey other than the Earned Sick Leave Law. The employees of the public employer who are provided with sick leave at full pay under another law or rule of New Jersey are exempt from coverage under the Earned Sick leave Law; however, the employees of the public employer who are not provided with sick leave at full pay under another law or rule of New Jersey are covered under the Earned Sick Leave Law and must be permitted to accrue/be advanced, use, be paid, carry-over or receive payout of earned sick leave in accordance with the requirements of the Earned Sick Leave Law.11
Further, the Act does not reference N.J.S.A. 18A:30-2, or provide any qualification that an employee receiving sick leave must be “steadily employed.”
So where does this leave school districts? At present, school districts should be consulting with their board attorneys, who should conduct careful analyses as to the conditions of employment of every district employee. Expanding sick leave to employees hired on an “on call” or “as needed” basis, such as to substitutes, creates substantial financial and operational burdens for school districts. Nevertheless, at this time, districts should be careful about denying earned sick leave to employees who do not already receive sick leave.
School administrators also should be mindful that the Act specifically provides that no employer may take retaliatory action or discriminate against any employee who requests or uses earned sick leave. In fact, the Act states that “[t]here shall be a rebuttable presumption of an unlawful retaliatory personnel action … whenever an employer takes adverse action against an employee within 90 days” of the employee filing an action challenging an alleged violation of the Act.12 While the Department of Labor has proposed regulations, those regulations, if adopted in their current form, do not address the questions identified herein. Without further clarification from the Department of Labor, it seems likely that a court challenge will be required to bring clarity to this issue.
1 N.J.S.A. 34:11D-1 et seq.
2 N.J.S.A. 34:11D-2(a).
3 N.J.S.A. 34:1D-1.
4 N.J.S.A. 34:11D-2(b).
5 N.J.S.A. 34:11D-1
7 N.J.S.A. 34:11D-3.
8 Woodbridge Twp. Federation of Teachers, et al v. Board of Educ. Of the Twp. Of WoodBridge, 1974 S.L.D. 1201, 1206.
9 DeGroot v. Board of Educ. Of Passaic County Reg. H.S. Dist. No.1, 13 N.J.A.R. 438, 448 (1990).
10 Donvito v. Northern Valley Reg. H.S. Dist., 387 N.J.Super. 216 (App. Div. 2006).
11 New Jersey Department of Labor, Earned Sick Leave FAQs, Section I., Question 4 (emphasis in original).
12 N.J.S.A. 34L11D-4.