[HISTORY: Adopted by the Council of the Township of Montclair as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-4-2014 by Ord. No. O-14-047]
For purposes of this article, the following terms shall have the meanings indicated:
- The Department of Health and Human Services.
- CALENDAR YEAR
- A regular and consecutive twelve-month period, as determined by an employer.
- CONSTRUCTION UNION
- A labor organization that represents, for purposes of collective bargaining, employees involved in the performance of construction, reconstruction, demolition, alteration, custom fabrication, or repair work and who are enrolled or have graduated from a registered apprenticeship program.
- As defined in N.J.S.A. 34:11-56a1(h), one who works in the Township of Montclair for at least 80 hours in a year, except that "employee," for purposes of this article, does not include any person employed by any governmental entity or instrumentality, including any New Jersey school district or board of education or any person who is a member of a construction union and is covered by a collective bargaining agreement negotiated by that union.
- As defined in N.J.S.A. 34:11-56a1(g), except that "employer" does not include the United States government; the state or its political subdivisions or any office, department, agency, authority, institution, association, society or any instrumentality of the state, including the legislature or judiciary; or the Township of Montclair.
- A. A biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, a child of a civil union partner, or a child to whom the employee stands in loco parentis;
- B. A biological, foster, stepparent or adoptive parent or legal guardian of an employee or of an employee's spouse, domestic partner or civil union partner or a person who stood in loco parentis when the employee was a minor child;
- C. A person to whom the employee is legally married under the laws of New Jersey or any other state or with whom the employee has entered into a civil union under N.J.S.A. Title 37;
- D. A grandparent or spouse, civil union partner or domestic partner of a grandparent;
- E. A grandchild;
- F. A domestic partner of an employee as defined in N.J.S.A. 26:8A-3 et seq.; or
- G. A sibling.
- HEALTH CARE PROFESSIONAL
- Any person licensed under federal or New Jersey law to provide medical or emergency services, including but not limited to doctors, nurses and emergency room personnel.
- PAID SICK TIME
- Time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and is provided by an employer to an employee for the purposes described in § 132-3 of this article, but in no case shall the hourly wage be less than that provided under N.J.S.A. 34:11-56a.
- REGISTERED APPRENTICESHIP PROGRAM
- An apprenticeship program that is registered with and approved by the United States Department of Labor and which meets not less than two of the following requirements:
- A. Has active, employed, registered apprentices;
- B. Has graduated apprentices to journey worker status during a majority of the years that the program has been in operation; or
- C. Has graduated apprentices to journey worker status during three of the immediately preceding five years, provides each trainee with combined classroom and on-the-job training under the direct and close supervision of a highly skilled worker in an occupation recognized as an apprenticeable trade and meets the program performance standards of enrollment and graduation under 29 CFR Part 29, Section 29.63.1.
- The denial of any right guaranteed under this article and any threat, discipline, discharge, suspension, demotion, reduction of hours, or any other adverse action against an employee for the exercise of any right guaranteed herein, including for filing a complaint or informing any person about any employer's alleged violation of this article; cooperating with the Agency in its investigations of alleged violations of this article; participating in any administrative or judicial action regarding an alleged violation of this article; and informing any person of his or her potential rights under this article.
All or any portion of the applicable requirements of this article shall not apply to employees covered by a collective bargaining agreement, to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.
With respect to employees covered by a collective bargaining agreement in effect at the time of the effective date of this article, no provision of this article shall apply until the expiration of the collective bargaining agreement; however, if the terms of an expired collective bargaining agreement provide paid sick leave that is more generous than provided by this article, those terms of the expired collective bargaining agreement apply to the extent required by law.
Employers who employ 10 or more employees for compensation are not required to provide more than 40 hours of paid sick time in a calendar year.
Employers who employ fewer than 10 employees for compensation are not required to provide more than 24 hours of paid sick time in a calendar year, except for employees who are child-care workers, home health care workers and food service workers. For child-care workers, home health care workers and food service workers, employers are required to provide up to 40 hours of paid sick time, so long as the hours are accrued in a calendar year as set forth in Subsection A above.
In determining the number of employees performing work for an employer, all employees performing work for compensation on a full-time, part-time, or temporary basis shall be counted, provided that where the number of employees who work for an employer for compensation fluctuates, business size may be determined for the current calendar year based upon the average number of employees who worked for compensation during the preceding calendar year.
Employees who are exempt from overtime requirements under 29 U.S.C. § 213(a)(1) of the Federal Fair Labor Standards Act are assumed to work 40 hours in each workweek for purposes of paid sick time accrual unless their normal workweek is less than 40 hours, in which case paid sick time accrues based upon that normal workweek.
Employees begin to accrue paid sick time on the first day of employment. Employees are entitled to use accrued paid sick time beginning on the 90th calendar day of their employment, and thereafter employees are entitled to use paid sick time as it is accrued.
Accrued but unused paid sick time shall be carried over to the following calendar year, provided that no employer shall be required to carry over more than 40 hours of unused paid sick time from one calendar year to the next or allow the use of more than 40 hours of paid sick time in a calendar year. An employer shall not be required to carry over unused paid sick time if the employee is paid for any unused paid sick time at the end of the calendar year in which such time is accrued.
Any employer with a paid leave policy, such as a paid time off policy, that provides an amount of paid leave sufficient to meet the total annual accrual requirements of this section that may be used for the same purposes and under the same conditions as paid sick time under this article is not required to provide additional paid sick time.
Nothing in this section shall be construed as requiring financial or other reimbursement to an employee from an employer upon the employee's termination, resignation, retirement, or other separation from employment for accrued paid sick time that has not been used.
If an employee is transferred to a separate division, entity, or location, but remains employed by the same employer in the Township of Montclair, the employee is entitled to all paid sick time accrued at the prior division, entity, or location and is entitled to use all paid sick time as provided in this section. If there is a separation from employment and the employee is rehired within six months of separation, previously accrued unpaid sick time that had not been used shall be reinstated. Further, the employee is entitled to use accrued unpaid sick time and accrue additional unpaid sick time at the recommencement of employment.
When a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer are entitled to all paid sick time accrued when employed by the original employer and are entitled to use all paid sick leave previously accrued.
At its sole discretion, an employer may loan paid sick time to an employee in advance of accrual by such employee. A decision by an employer to deny a loan request by an employee shall not subject the employer to any liability under this article.
Paid sick time shall be provided to an employee by an employer for:
An employee's mental or physical illness, injury, or health condition; an employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; an employee's need for preventive medical care;
Care of a family member with a mental or physical illness, injury, or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; care of a family member who needs preventive medical care;
Closure of the employee's place of business by order of a public official due to a public health emergency or an employee's need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the family member's presence in the community would jeopardize the health of others because of the family member's exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.
Nothing in this article prohibits an employer from requesting that an employee confirm, in writing, following use of paid sick time, that the paid sick time was used for an authorized purpose under this article.
Where the need to use paid sick time is foreseeable, an employer may require reasonable advance notice of the intention to use paid sick time. In no event shall an employee be required to give notice more than seven days prior to the date such sick time is to begin. Where such need is not foreseeable, an employer may require an employee to provide notice of the need for the use of sick time before the beginning of the employee's work shift or workday or, in cases such as emergencies where advance notice is not possible, notice shall be provided by the employee as soon as practicable.
An employer may not require, as a condition of an employee's taking paid sick time, that the employee search for or find a replacement worker to cover the hours during which the employee is absent.
Accrued sick time may be used in the smaller of hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time.
After an employee has used paid sick time for three consecutive days or three consecutive instances, an employer may require an employee to provide reasonable documentation that the time has been used for a purpose covered by Subsection A. In this instance, the employer may require documentation signed by a health care professional indicating that the paid sick time was necessary; however, an employer may not require that the documentation explain the nature of the illness.
All employers shall give written notice to each employee at the commencement of the employee's employment (or as soon as practicable if the employee is already employed on the effective date of this article), regarding employee's rights under this article. Such notice shall describe the right to paid sick time, the accrual rate and the amount of paid sick time, and the terms of its use under this article; the right to be free from retaliation for properly requesting use of paid sick time; and the right to file a complaint or bring an action in municipal court if paid sick time is denied by the employer or the employee is retaliated against for requesting or taking paid sick time. Such notice shall be in English and the primary language spoken by that employee, so long as the primary language of that employee is also the primary language of at least 10% of the employer's workforce.
Employers shall also display a poster, in a conspicuous and accessible place in each business establishment where employees are employed, containing the information required in Subsection A. The poster shall be in English and in any language that is the first language of at least 10% of the employer's workforce.
Any employer who violates the provisions of this article shall, upon conviction thereof, be punished by a fine not exceeding $2,000. Each day on which a violation of this article exists shall be considered a separate and distinct violation and shall be subject to imposition of a separate penalty for each day of the violation as the Municipal Court Judge may determine. In addition to the fines set forth above, any employer who violates this article is subject to payment of restitution in the amount of any paid sick time unlawfully withheld.
Employers shall allow the Agency reasonable access to records and to monitor compliance with the requirements of this article. An employer's failure to maintain or retain adequate records documenting hours worked by an employee and paid sick time taken by an employee creates a rebuttable presumption that the employer has violated this article, absent clear and convincing evidence otherwise.
The Agency shall coordinate implementation and enforcement of this article and promulgate appropriate guidelines or regulations for such purposes.
The Agency shall have broad powers to ensure compliance with this article.
In the event an allegation of noncompliance cannot be resolved by the Agency with the employer, a complaint may be filed, by the Agency and/or the employee as the complainant, in the Montclair Municipal Court for any alleged violation of this article.
The Municipal Court shall have the power to adjudicate all allegations of violations of this article and impose fines or penalties provided for in this article, or any further relief deemed appropriate by the court, including but not limited to restitution, reinstatement, or injunctive or declaratory relief.
Submitting a complaint to the Agency is neither a prerequisite nor a bar to bringing a private action.
The Agency shall have the power to do outreach to inform the residents of the Township of their rights under this article and to publicize online and in other media the names of employers who violate this article.
An employer may not require disclosure of the specific details relating to an employee's or an employee's family member's medical condition as a condition of providing paid sick time under this article. If an employer possesses health information about an employee or employee's family member, such information shall be treated as confidential and shall not be disclosed by the employer except to the affected employee or with the permission of the affected employee.
The Agency shall maintain confidential the identity of any complaining person unless disclosure of the identity is necessary for resolution of the investigation. The Agency shall, to the extent practicable, notify a complaining person that the Agency will be disclosing his or her identify prior to such disclosure.
Nothing in this article shall be construed to discourage or prohibit an employer from the adoption or retention of a paid sick time policy more generous than the one required herein.
Nothing in this article shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous paid sick time to an employee than required herein.
Nothing in this article shall be construed as diminishing the rights of public employees regarding paid sick time or use of paid sick time as provided in the laws of the State of New Jersey pertaining to public employees.
Nothing in this article shall be construed or interpreted in a way that would conflict with any state or federal law pertaining to paid sick time or employee benefits.
This article provides minimum requirements pertaining to paid sick time and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick time, whether paid or unpaid, or that extends other protections to employees.
If any provision of this article or application thereof to any person or circumstance is judged invalid, the invalidity shall not affect other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this article are declared severable.
This article will take effect 120 days following enactment, except that in the case of employees covered by a collective bargaining agreement in effect on the effective date prescribed herein, this article shall apply on the date of the termination of such agreement unless the collective bargaining agreement expressly waives the protections set forth in this article.