N.J. Admin. Code § 12:69-3.7

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

Section 12:69-3.7 - Payout and carry-over of earned sick leave

(a) Where the employer provides earned sick leave to its employees using the accrual method under N.J.A.C. 12:69-3.3, the following applies relative to payout and carry-over of earned sick leave:

1. In the final month of the employer's benefit year, the employer may provide an offer to an employee for payout of unused earned sick leave.

2. The employee may accept the employer's payout offer within 10 calendar days from the date the offer was made.

3. If the employee does not accept the payout offer within 10 calendar days from the date of the employer's offer, the employee is deemed to have declined the employer's offer.

4. If the employee agrees to receive a payout, the employee shall choose either a payout for the full amount of unused earned sick leave or for 50 percent of the amount of unused earned sick leave.

5. If the employee declines a payout of unused earned sick leave or agrees to a payout of 50 percent of the amount of unused earned sick leave, the employee shall be entitled to carry forward to the following benefit year any unused earned sick leave, except that the employer shall not be required to permit the employee to carry forward from one benefit year to the next, more than 40 hours of earned sick leave.

6. If the employee agrees to a payout of the full amount of unused earned sick leave, the employee shall not be entitled to carry forward to the following benefit year any unused earned sick leave.

7. The payout amount shall be based on the rate of pay that the employee is earning at the time of the payout.

i. Where an employee has two or more different jobs for the same employer or if an employee's rate of pay fluctuates for the same job, the rate of pay for the payout of unused earned sick leave shall be the amount that the employee is regularly paid for each hour of work as determined by adding together the employee's total earnings, exclusive of overtime premium pay, for the seven most recent workdays when the employee did not take leave and dividing that sum by the total hours of work during that seven-day period.

ii. Where an employee is paid by commission, whether base wage plus commission or commission only, the rate of pay for the payout of unused earned sick leave shall be an hourly rate that is the base wage or the State minimum wage rate, whichever is greater.

iii. When an employee is paid on a piecework basis, whether base wage plus piecework or piecework only, to calculate the employee's rate of pay for payout of unused earned sick leave, the employer shall add together the employee's total earnings for the seven most recent workdays when the employee did not take leave and divide that sum by the number of hours the employee spent performing the work during workdays. When doing this calculation, the employer shall consider workdays to mean the days or parts of days the employee worked.

(b) Where the employer provides earned sick leave to its employees using the advancing method under N.J.A.C. 12:69-3.4, the following applies relative to payout and carry-over of earned sick leave:

1. In the final month of the employer's benefit year, the employer shall either provide to the employee a payout for the full amount of unused earned sick leave or permit the employee to carry-over any unused earned sick leave, except that the employer shall not be required to permit the employee to carry forward from one benefit year to the next, more than 40 hours of earned sick leave.

2. If the employer provides to the employee a payout for the full amount of unused earned sick leave, the employer may not use the accrual method with respect to that employee during the next benefit year.

(c) Unless an employer policy or collective bargaining agreement provides for the payout of unused earned sick leave upon an employee's termination, resignation, retirement, or other separation from employment, an employee shall not be entitled to a payout of unused earned sick leave upon separation from employment.

N.J. Admin. Code § 12:69-3.7

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