MC 2016-08
An Ordinance Amending Chapter 8, “Health”, of the Municipal Code of the City of Plainfield, and Creating Article 5, Entitled “Sick Leave for Private Employees”, to Promote the Overall Health and Safety of the Residents and Workers of Plainfield by Reducing the Spread of Communicable Disease and Contagion by Requiring a Policy of Paid Sick Leave for Workers in Plainfield.
BE IT ENACTED BY THE PLAINFIELD CITY COUNCIL THAT:
Purpose:
(1)
To ensure that all workers in Plainfield can address their own health
needs and the health needs of their Family Members by requiring
Employers to provide a minimum level of paid sick time, including time
for care for Family Members;
(2)
To diminish public and private health care costs and promote
preventative health services in Plainfield by enabling workers to seek
early and routine medical care for themselves and their Family Members;
(3) To protect the public's health in Plainfield by reducing the risk of and spread of contagion;
(4)
To promote the economic security and stability of workers and their
families, as well as businesses serving Plainfield and its residents;
(5)
To protect residents and all workers in Plainfield from losing their
jobs or facing workplace discipline as a result of illness and the use
of sick time to care for themselves or their Family Members;
(6) To safeguard the public welfare, health, safety and prosperity of the people of Plainfield;
(7)
To accomplish the purposes described in paragraphs (1)-(6) in a manner
that is fair and reasonable to both Employees and Employers, and
rationally related to the objectives sought which is to promote the
overall health and safety of the residents and workers in Plainfield by
reducing the risk of and spread of communicable disease and contagion.
The
Ordinances of Plainfield are hereby amended as to include the following
Ordinance, entitled Sick Leave for Private Employees.
Section 1. Definitions.
For purposes of this Ordinance:
(1) "Agency" means the Department of Administration and Finance, Division of Health & Social Services.
(2) "Calendar year" means a regular and consecutive 12 month period, as determined by an employer.
(3)
"Construction union" means 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."
(4)
"Employee" is as defined in N.J.S.A. 34:11-56a1(h) who works in
Plainfield for at least 80 hours in a year except that "Employee" for
purposes of this Ordinance does not include any person employed by any
governmental entity or instrumentality including any New Jersey school
district or Board of Education or (b) any person who is a member of a
construction union and is covered by a collective bargaining agreement
negotiated by that union.
(5)
"Employer" is as defined in N.J.S.A. 34:11-56a1(g) except that Employer
does not include (a) the United States government; (b) 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 (c) Plainfield.
(6) "Family Member" means
(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.
(7)
"Health Care Professional" means 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.
(8)
"Paid Sick Time" means 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 Section 3 of this
Ordinance, but in no case shall the hourly wage be less than that
provided under N.J.S.A. 34:11-56a.
(9)
"Registered apprenticeship program" means 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 C.F.R. Part 29, section 29.63.1.
(10)
"Retaliation" means the denial of any right guaranteed under this
Ordinance 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 Act; cooperating with the Agency in its
investigations of alleged violations of this Act; participating in any
administrative or judicial action regarding an alleged violation of
this Act; and informing any person of his or her potential rights under
this Act.
Section 2. Employees Covered by Collective Bargaining Agreements.
(1)
With respect to Employees covered by a collective bargaining agreement
in effect at the time of the effective date of this Ordinance, no
provision of this Ordinance 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 Ordinance, those terms of the expired
collective bargaining agreement apply to the extent required by law.
Section 3. Accrual of Paid Sick Time.
(1)
All Employees accrue a minimum of one hour of paid sick time for every
30 hours actually worked, subject to the limits set forth below in
paragraphs 2 and 3. (2) Employers who employ ten or more Employees for
compensation are not required to provide more than 40 hours of paid
sick time in a calendar year; (3) Employers who employ fewer than ten
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 paragraph 1 above. (4) 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, (5) 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 work week for purposes of paid sick time accrual unless their
normal work week is less than 40 hours, in which case paid sick time
accrues based upon that normal work week. (6) 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 100th calendar day of
their employment and thereafter Employees are entitled to use Paid Sick
Time as it is accrued. (7) 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 forty (40) hours of unused Paid Sick Time from one calendar year
to the next or allow the use of more than forty (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. (8) 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 Ordinance is not required to provide additional paid sick
time. (9) 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. (10) If an Employee is transferred to a separate division,
entity, or location, but remains employed by the same Employer in
Plainfield, 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 (6) 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
re-commencement of employment. (11) 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. (12) 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 Ordinance.
Section 4. Use of Paid Sick Time.
(1) Paid Sick Time shall be provided to an Employee by an Employer for:
(A)
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;
(B)
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;
(C)
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 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.
(2) Nothing in this Act 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 Act. (3)
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 work day or, in cases such as
emergencies where advance notice is not possible, notice shall be
provided by the Employee as soon as practicable. (4) 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. (5) 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. (6)
After an Employee has used Paid Sick Time for 3 consecutive days or 3
consecutive instances, an Employer may require an Employee to provide
reasonable documentation that the time has been used for a purpose
covered by subsection (1). 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.
Section 5. Exercise of Rights Protected; Retaliation Prohibited.
(1)
No person shall interfere with, restrain, or deny the exercise of, or
the attempt to exercise, any right protected under this Ordinance. (2)
No person shall retaliate against an Employee because the Employee has
properly exercised rights protected under this Ordinance.
Section 6. Notice and Posting and Fines and Penalties for Violations of Notice, Posting and Other Requirements.
(1)
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 law)
regarding Employee's rights under this Ordinance. 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 Ordinance; 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. (2)
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 (1). The poster shall
be in English and in any language that is the first language of at
least 10% of the Employer's workforce. (3) The Agency can create and
make available to Employers notices and posters in English and Spanish
and any other languages deemed appropriate by the Agency that contain
the information required under subsection 1(1) for Employers' use in
complying with this section.
Section 7. Fines.
Any
Employer who violates the provisions of this Ordinance shall, upon
conviction thereof, be punished by a fine not exceeding $750. Each day
on which a violation of an ordinance 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 Ordinance is subject to payment of
restitution in the amount of any Paid Sick Time unlawfully withheld.
Section 8. Employer Records.
Employers
shall allow the Agency reasonable access to records and to monitor
compliance with the requirements of this Act. 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 Ordinance, absent clear
and convincing evidence otherwise.
Section 9. Enforcement and Regulations.
(1)
The Agency shall coordinate implementation and enforcement of this
Ordinance and promulgate appropriate guidelines or regulations for such
purposes.
(2) The Agency shall have broad powers to ensure compliance with this Ordinance.
(3)
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 Plainfield Municipal Court
for any alleged violation of this Ordinance.
(4)
The Municipal Court shall have the power to adjudicate all allegations
of violations of this Ordinance and impose fines or penalties provided
for in this Ordinance, or any further relief deem appropriate by the
court including but not limited to restitution, reinstatement,
injunctive or declaratory relief.
(5) Submitting a complaint to the Agency is neither a prerequisite nor a bar to bringing a private action.
(6) The Agency shall have the power to do outreach to inform the residents of the Township of their rights under this.
Section 10. Confidentiality and Nondisclosure.
(1)
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 Ordinance. 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.
(2)
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.
Section 11. No Effect on More Generous Policies.
(1)
Nothing in this Ordinance 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. (2) Nothing in this
Ordinance 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. (3) Nothing in this
Ordinance 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.
(4) Nothing in this Ordinance shall be construed as diminishing the
rights secured by S2177, the "New Jersey Security and Financial
Empowerment Act" for domestic violence victims in Plainfield. (5)
Nothing in this Ordinance 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.
Section 12. Other Legal Requirements.
This
Ordinance 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.
13. Severability.
If
any provision of this Ordinance 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 Ordinance are declared severable.
14. Effective Date.
This
Ordinance 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 Ordinance shall
apply on the date of the termination of such agreement unless the
collective bargaining agreement expressly waives the protections set
forth in this Ordinance.
STATEMENT
This ordinance will require Employers in Plainfield to provide a minimum number of days of paid sick leave.
Adopted BY THE MUNICIPAL COUNCIL March 14, 2016