The New Jersey Department of Labor and Workforce Development (NJDOL) has issued final regulations on the New Jersey Earned Sick Leave Law (ESLL), ending more than a year’s anticipation following the close of the proposed regulations’ comment period in 2018. Though short on substantive changes, an extensive comment-and-response section provides more guidance to the NJDOL’s interpretation and enforcement of the ESLL. Significantly, it discusses the ESLL’s interplay with collective bargaining agreements (CBAs), existing paid time off (PTO) policies, and employee leave laws. It also explains the permissible use and payment of ESLL. (On the proposed regulations, see our article, New Jersey Department of Labor Releases Proposed Paid Sick Leave Regulations.)
The final regulations correct references and clarify ESLL rights when an employee is rehired, but contain little other substantive revisions. Indeed, the NJDOL notes that the regulations required no further public comment due to the insubstantial nature of the revisions. Nevertheless, the final regulations eliminate the requirement that an employer establish a single benefit year applicable to all employees. In the comments, the NJDOL explains that an employer may lawfully utilize an employee’s anniversary year as the benefit year for purposes of the ESLL.
Importantly, the NJDOL appears to agree the ESLL is not clear in several areas or creates difficulties for employers as written (e.g., carryover for employers who frontload and notice restrictions for certain employees). The NJDOL repeatedly advises that it does not have the statutory authority to revise the ESLL through regulations. This falls on the legislature to modify the ESLL. The NJDOL’s comments and responses may act as a road map for the legislature.
The NJDOL also advises that additional rulemaking on the applicability of ESLL to out-of-state employees is contemplated. The comments note that any such rules will follow the existing Division on Civil Rights regulations on applicability of the New Jersey Family Leave Act.
Given the extensive comments, employers should review their ESLL policies to ensure compliance. Employers that use a PTO policy to satisfy the ESLL requirements should review with counsel the pros and cons given the NJDOL’s position that, essentially, all the PTO hours will be viewed as covered under the ESLL. Please contact a Jackson Lewis attorney with any questions about compliance with this and other leave laws.
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