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One provision of the paid sick leave law that takes effect Oct. 29 is that employers who have paid time off (PTO) policies do not necessarily have to establish a separate leave program for sick time to comply with the law. They can use their existing paid time off program under the law, IF it allows employees to accrue and use the leave according to the law.

That’s a big “if.”

At NJBIA’s paid sick leave seminar yesterday, attorney Jeffrey Corradino of Jackson Lewis P.C. offered some clarity on the policy, although he emphasized that there’s a great deal of confusion about the new law and the regulations that accompany it.

In short, he presented four questions to ask about your PTO program to determine if it would qualify under the paid sick leave law.

Question 1: Do your policies define “family member” broadly enough to encompass the definition in the law?

The law allows employees to take paid leave to care for a sick family member. As Corradino points out, however, the definition of “family member” is pretty broad. In addition to what most people would consider family members, paid sick leave law includes “any other individual…whose close association with the employee is the equivalent of a family relationship.”

Question 2: Do your employees accrue their time off at the appropriate rate, i.e. one hour of paid sick leave for every 30 hours worked?

For exempt employees, employers can either track their hours for leave accrual purposes or simply assume they work a 40-hour week.

Corradino said there is no guidance yet for calculating accrual for employees who regularly work in New Jersey and other states as well.

Question 3: Do your policies define and provide notice of the benefit year as defined in the statute?

Regulations issued since this article was published require the benefit year to be the same for all employees, effectively eliminating the ability to use an employee’s anniversary date. (Updated 10/30/18).

Question 4: Does you policy apply to all employees?

“With the exception of licensed professionals in health care, any paid sick leave policy must apply to all employees regardless of status or no matter how many hours worked per week,” Corradino said.

That means a PTO policy must be applicable to all employees or you must have a separate policy with the minimum accrual and carry over provisions for each classification that’s not covered by the policy.