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Wednesday, September 4, 2019

Does My NJ Employer Have to Pay Me for Sick Days? ESLL, Part I

Generally, the most likely answer to this is “Yes”.  New Jersey’s Earned Sick Leave Law, “ESLL”, changes the rights of employees from pre-existing state laws which had no standardized requirement for employers to pay sick leave. With the new law, ESLL, a covered employee starts earning paid sick leave from the first day of work but is not eligible to use it until he has worked for 120 days. The new law applies to all full-time, part-time and temporary employees with some exceptions. Employers of all sizes must now provide employees with up to 40 hours of earned sick leave annually in order to care for themselves or a family member.

When did the Earned Sick Leave Law take effect?

If you are a NJ employee, you can begin taking earned sick leave on February 26, 2019, or 120 days after your first day of employment, whichever is later. Your employer may impose the 120 day waiting period, but your employer may waive the 120 day waiting period and allow you to use your accrued sick time earlier.

My employer never paid me when I was out sick in the past. Does this mean My employer must pay me for sick leave now?

Again, generally, the most likely answer to this is “Yes”, because ESLL covers all size employers from the smallest to the largest and it includes non-profit organizations. Unlike some other laws, which have carve-outs for some of the following professions, most New Jersey workers are eligible: Employees in the hospitality sector and service sector such as coffee-houses, restaurants, fast food chains, childcare, and retail sales are covered under ESLL.

What employees are not entitled to paid sick leave under the ESSL?

Under ECLL, § 34:11 D-1, a covered “Employee” does not include:

  • an employee performing service in the construction industry that is under contract pursuant to a collective bargaining agreement,
  • or a per diem health care employee,
  • a public employee who is provided with sick leave with full pay pursuant to any other law, rule, or regulation of this State.

What is meant by a “Per diem health care employee” ?

“Per diem health care employee” means any:

  • (1) health care professional licensed in the State of New Jersey employed by a health care facility licensed by the New Jersey Department of Health;
  • (2) any individual that is in the process of applying to the New Jersey Division of Consumer Affairs for a license to provide health care services who is employed by a health care facility licensed by the New Jersey Department of Health; or
  • (3) any first aid, rescue or ambulance squad member employed by a hospital system. An employee listed in paragraphs (1), (2), and (3) of this definition shall be considered a per diem health care employee if that employee:

(1) works on an as-needed basis to supplement a health care employee, or to replace or substitute for a temporarily absent health care employee;

(2) works only when the employee indicates that the employee is available to work, and has no obligation to work when the employee does not indicate availability; and

(3) either:

(a) has the opportunity for full time or part time employment in their scope of practice under that healthcare provider which offers paid time off benefits greater in length than provided under this act under the terms of employment; or

(b) has waived earned sick leave benefits as provided under this act under terms of employment for alternative benefits or consideration.

Under ESLL, does my employer have to pay me for all day I am out sick time?

Employees accrue one hour of paid sick time for every 30 hours worked, up to 40 hours per year. The employer may also advance the 40 hours or a prorated amount during the benefit year.

ESLL does not affect other laws as to your employment rights.

ESLL is just for payment for earned sick leave and does not affect other laws as to employment guarantees and rights such as those under the Family Medical Leave Act, “FMLA”.  ESLL only guarantees payment for up to 40 hours of sick leave for covered employees. You must rely on other leave laws as to your rights when you are sick or disabled or need time off to take care of a family member, etc., the FMLA, New Jersey Family Leave Act, and the New Jersey Law Against Discrimination.

You can use earned sick leave to care for yourself or a family member but there are other permitted uses, such as involving domestic or sexual violence against yourself or a family member, which may include attending court proceedings or counseling sessions; attending your child’s school-related meeting or conference required by administrator or teacher.

ESLL has an expanded definition of “family member”.

Under ESLL, “family member” includes the following:

 a child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee, or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.

What You Can Do.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing disabled persons, employees on FMLA leave, pregnant women, and related issues. If you find yourself in a situation with inadequate job security for disabled employees, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.


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