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Unless you’ve been living under a rock in New Jersey, you likely know that paid sick leave will be the law of the land for all New Jersey employers beginning on October 29, 2018.  We recently issued an update on the law and included a link to the draft poster that has been issued by the State.  More details can be found here.

The poster may not be in final form as the regulations have not been finalized.  However, employers must still post the poster by October 29, 2018.

If you haven’t already reviewed your sick leave policies for compliance, you should do that asap to be ready when the law goes into effect.

As an employment lawyer, I anxiously awaited the proposed regulations for the New Jersey sick leave law as the law left some unanswered questions regarding carryover and other issues.  The proposed regulations have been out for a few weeks now and I have had time to thoroughly digest them

Unfortunately for employers, the proposed regulations do not answer some of the questions my clients had regarding the law and create confusion in other areas.  Some of the more incomprehensible sections of the regulations occur in the section dealing with calculating sick leave pay.  Employers with tipped, commissioned or piecework employees should pay special attention to these provisions.

There are many problems with this section, but one of the key ones is how an employer calculates a rate of pay for employees with two or more jobs for the employer, has a fluctuating rate of pay, is paid on piecework, or is a tipped employee.  The proposed regulations at 12:69-3.6 provide that in these cases an employer must look at wages earned in the last seven (7) workdays where leave was not taken and take the earnings divided by the hours worked to get an hourly wage.

The problem with this is that few employees have a seven-day workweek. Instead, many employees have a five-day workweek.  For those employees, an employer would have to go back one workweek plus two more work days in a previous week, which is likely not representative of the employee’s regular work schedule. It also creates an administrative nightmare as the employer could not simply look at the previous workweek to see what was earned.

It would make more sense to use the last week worked or a two-week period which would be more representative of an employee’s schedule.

This is but one issue in the proposed regulations.  I have been working with several of my partners to help business groups prepare comments to the proposed regulations and this is one issue we intend to raise.

If you have other issues or questions about the proposed regulations, we would love to hear from you to see if they could be incorporated into our comments.

Employers can also provide comments directly to the Division of Labor by submitting written comments by December 14, 2018 to:

David Fish, Executive Director
Office of Legal and Regulatory Services
NJ Department of Labor and Workforce Development
PO Box 110
13th Floor
Trenton, New Jersey 08625-0110
E-mail: David.Fish@dol.nj.gov

Today, as expected, Governor Murphy signed into law the Paid Sick Leave Act.  The Paid Sick Leave law is effective October 29, 2018.

The Law requires all New Jersey employers, regardless of size, to provide up to 40 hours of paid sick leave per year.  Full details about the law can be found in our alert here.

Employers do have some time to get ready for the new law.  Employers should review their paid time off policies to determine if changes need to be made.

In the meantime, we will keep an eye out for the required poster that will be developed by the Department of Labor and let you know when it is issued.

Several recent New York City human rights law amendments in the past year have steadily increased worker protections applicable to New York City employers. As is no surprise, the mayor’s office recently adopted yet another new amendment passed by the New York City Council amending the New York City Human Rights Law (NYCHRL) effective October 15, 2018.

What is particularly noteworthy here are the administrative obligations placed on New York City employers under this new law. Once effective, New York City employers are required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation (whether for disability-related, religious, or other covered reasons) and to document that process. Employers with operations in New York City should be aware of these new changes and grow accustomed to their administrative burdens prior to the enactment’s effective date.

Under the NYCHRL, as most New York City employers are already aware, reasonable accommodations (such as workplace rule changes and unpaid leave) must generally be provided to employees for any covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

However, the new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue for employers (from an administrative standpoint). While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law.

If prior to the effective date additional guidance is issued by the New York City Commission on Human Rights that helps clarify or to mitigate the law, we will prepare a follow-up to this piece. Otherwise, employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

On January 12, the Maryland General Assembly overrode Governor Larry Hogan’s veto and passed the Healthy Working Families Act. The Act will go into effect on February 11, 2018, unless the General Assembly passes legislation delaying its implementation.  Yesterday, one of the principal sponsors of the law did introduce legislation that would delay enforcement of the law until April 2018.  We will keep you posted on whether the implementation of the Act is delayed.

In the meantime, the Act requires Maryland businesses with at least 15 employees to offer paid sick and safe leave as well as requiring smaller businesses to provide unpaid sick and safe leave.

More specifically, the Act requires employers with at least 15 employees, regardless of whether those employees are seasonal, temporary, part-time, or full-time, to offer eligible employees the ability to earn up to 40 hours of paid leave a year.  The 40 hours can be awarded at the beginning of each year or accrued at a rate of one hour for every 30 hours worked.  Moreover, employees can carry over up to 40 hours of paid leave a year.  Employers can cap use of paid leave at 64 hours per year and are not required to pay out unused, accrued sick leave when an employee is terminated.  Employers with up to 14 employees must provide unpaid earned sick and safe leave under the same terms.

The paid leave can be used to: 1) care for the physical or mental health of the employee or a family member, including obtaining preventative care; 2) take maternity or paternity leave; or 3) obtain relief in response to domestic violence, stalking, or sexual assault of the employee or a family member.

There are some exceptions.  For example, the Act does not apply to workers who 1) regularly work less than 12 hours a week; 2) are under the age of 18; 3) are certain independent contractors; 4) are certain agricultural workers; or 5) work on an as-needed basis in the health and human services industry.  Additionally, there are exceptions for employers in the construction industry that are parties to collective bargaining agreements.

Additionally, employers may set some restrictions on the use of paid leave such as 1) only allowing the use of paid leave after an employee has worked 106 calendar days from the date of hire; 2) require up to seven days’ notice for foreseeable leave; and 3) implementing policies to prevent improper use.  Employers can also obtain verification regarding appropriate use of paid leave if it is used for more than two consecutive scheduled shifts or between the 107th and 120th calendar days of employment and the employee agreed to provide verification at the time of hire.

Employers are required to notify employees of their rights under the Act and to provide a written statement each pay period detailing the amount of earned leave available for use.  The Department of Labor, Licensing, and Regulation (DLLR) has been directed to create a model notice, but it is not clear when such notice will be available.

Next Steps for Employers

Employers should immediately review and revise their paid time off (PTO), sick, and other leave policies to ensure compliance with the Act.  At the same time, employers should monitor any action the General Assembly takes to delay implementation.  In the review and revision process, particular care should be given to:

  • Recordkeeping: employers must keep records regarding leave accrual and use for three years;
  • Notice: if DLLR does not issue a model notice before the implementation date, employers must create their own;
  • Payroll systems: employers must update payroll systems to report leave balances on pay stubs and meet the Act’s requirements;
  • Applicability: the Act applies to all part-time employees who do not fall into one of the exempt categories; and
  • Carryover: employers must allow employees to carry up to 40 hours of paid leave time over per year (subject to the 64 hour use limitation)

UPDATE (February 2, 2018): Today, the bill to delay the Act’s implementation received a favorable vote from the Maryland Senate Finance Committee and will move to the full Senate for a vote. The bill passed out of Committee with two important amendments that will benefit employers.

  • First, the Act would not take effect until July 1, 2018, rather than April 11, 2018, giving employers additional time to implement policies and procedures in compliance with the Act.
  • Second, leave accrual – currently slated to begin on February 11, 2018 – would also not begin until July 1. This should eliminate issues that would have arisen as leave accrued prior to employers being required to track it and in the absence of any regulations from the Department of Labor, Licensing, and Regulation.

The bill still has to pass both the Senate and the House of Delegates with a 3/5 vote if the Act’s implementation is to be delayed due to the bill’s designation as emergency legislation. The full Senate is expected to vote on the bill as early as Monday, February 5th.

UPDATE (February 8, 2018): The Senate passed the bill delaying the Act’s implementation, as amended, by a vote of 29-17.  The bill will now move to the House of Delegates for consideration where it will face an uphill battle due to the short time frame until the Act’s effective date.  Additionally, key legislators in the House have expressed opposition to delaying the Act’s implementation.

UPDATE (February 12, 2018): The Act is now in effect as the House of Delegates chose not to delay implementation.  A sample employee notice poster created by DLLR is here: http://www.dllr.maryland.gov/paidleave/paidleaveposter.pdf

Rachel Severance is an associate in the firm’s Labor and Employment Department, resident in its Washington D.C. office.

As of January 1, 2018, all New York employers, regardless of size, must offer paid family leave to their employees.  Hopefully, employers already have revised policies in anticipation of the law taking effect.

If employers have not revised handbooks or other policies, the law does not require employers to have a paid family leave policy.  However, the state is strongly suggesting that employers do so.

New York has a website devoted to Paid Family Leave that provides resources to employers.  They have also issued a guide that contains a sample handbook policy, which can be found here.

New York has also issued a fact sheet that outlines the basic responsibilities employers have under the law.

Employers with questions are encouraged to consult their labor counsel.

On November 6, 2017, the New York City Council passed Int. 1313-2016 that amends the Paid Sick Leave Law.  Don’t panic, employers.

The law does not require additional leave. It merely adds another covered reason that employees may use earned paid time off.  New York City’s paid sick leave law will now be entitled the “Earned Safe and Sick Time Act.”

Employees will be able to use earned safe/sick time for the following reasons if the employee or the employee’s family member has been the victim of a “family offense matter”, sexual offense, or human trafficking:

  1. to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
  2. to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
  3. to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
  4. to file a complaint or domestic incident report with law enforcement;
  5. to meet with a district attorney’s office;
  6. to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers should update policies to make sure they are compliant with the new law as the law is effective May 5, 2018.

Employers will also be required to issue to all employees a Notice of Employee Rights notice to employees no later than June 4, 2018.  New hires hired on or after May 5, 2018 should be given a copy of the revised Notice of Employee Rights as well.  The DCA will be issuing a revised Notice of Employee.  We will update you when that is issued.

On September 20, 2017, the Seventh Circuit Court of Appeals issued a decision that a requested three month medical leave due to a disability was not a reasonable accommodation under the ADA.  Although there is some discussion of the particular facts in the case, much to the delight of management-side attorneys like me, the case goes beyond saying that the leave was not reasonable in this particular circumstance.

Instead the Court noted that the ADA is not a medical leave statute.  The Court held that an accommodation need only be granted under the ADA if it will help the employee work.  Since an employee who needs leave cannot work, then they cannot be considered a qualified individual with a disability.

The Court does note that a brief leave of days or perhaps a few weeks, might, in some circumstances be a reasonable accommodation.  But, and here’s the good part, “a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.”

The subject of how long must an employer grant leave to a disabled employee is a common one. Often, it is the source of great frustration for employers.  Although there is still no bright-line test as to just how much leave must be granted, this case certainly seems to limit that time to less than two months for employers within the Seventh Circuit.

Employers should still be cautious as many state and local laws that require reasonable accommodations for disabilities may not be interpreted in the same manner.

If you want to read more, the case is Severson v. Heartland Woodcraft Inc. 2017 U.S. App. LEXIS 18197.

The devastation in Texas is breathtakingly sad.  Although the storm has passed, recovery efforts continue.  For many, it will take months and years to recover.

Today I received my first call from a client asking about its obligations towards an employee who will be traveling to Texas to help with the recovery efforts.  Many states do have laws that protect first responders from being disciplined or terminated for missing work while responding to an emergency.

New Jersey, for example, is one such state that has a law that provides that an employer cannot “terminate, dismiss or suspend an employee who fails to report for work at his place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of this State.”

Under the New Jersey law, a volunteer emergency responder is defined as “an active member in good standing of a volunteer fire company, a volunteer member of a duly incorporated first aid, rescue or ambulance squad, or a member of any county or municipal volunteer Office of Emergency Management, provided the member’s official duties include responding to a fire or emergency call.”

In the last few days, President Trump has declared a state of emergency in Texas and Louisiana.  As such any New Jersey volunteer emergency responder who is traveling to aid with the Hurricane Harvey recovery efforts may be entitled to leave.

The leave does not have to be paid.  Employees may be able to use available or vacation days while out on leave, but cannot be forced to use such time.

The bad news for employers is that the law does not provide a limit on the amount of work that can be missed by the employee.  Many other jurisdictions besides New Jersey provide similar protections.  Employers with questions about first responder leave are encouraged to contact employment counsel.

For those wanting to help victims of Hurricane Harvey, Consumer Reports  and the New York Times have written some helpful guidance on avoiding scams, as well as listing some charities that are in the best position to help.

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.