N.J. Admin. Code § 12:69-3.5

Current through Register Vol. 56, No. 24, December 18, 2024

Section 12:69-3.5 - Earned sick leave; use

(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.

(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.

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.

(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.

N.J. Admin. Code § 12:69-3.5

Adopted by 52 N.J.R. 20(a), effective 1/6/2020