[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.
A regular and consecutive twelve-month period, as determined
by an employer.
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 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;
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;
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;
A grandparent or spouse, civil union partner or domestic partner
of a grandparent;
A grandchild;
A domestic partner of an employee as defined in N.J.S.A. 26:8A-3
et seq.; or
A sibling.
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.
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.
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:
Has active, employed, registered apprentices;
Has graduated apprentices to journey worker status during a
majority of the years that the program has been in operation; or
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.
A.
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.
B.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
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.
L.
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.
A.
Paid sick time shall be provided to an employee by an employer for:
(1)
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;
(2)
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;
(3)
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
B.
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.
A.
The Agency shall coordinate implementation and enforcement of this
article and promulgate appropriate guidelines or regulations for such
purposes.
B.
The Agency shall have broad powers to ensure compliance with this
article.
C.
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.
D.
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.
E.
Submitting a complaint to the Agency is neither a prerequisite nor
a bar to bringing a private action.
F.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
E.
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.
