FOLLOWING THE PASSAGE OF CHAPTER 95, SCHOOL EMPLOYEES NOW NEED NOT BE SICK TO USE SICK LEAVE.
On July 3, 2023, Governor Murphy signed P.L. 2023, c. 95 (“Chapter 95”) into law. Chapter 95 widely expands the permitted uses of sick leave for school district employees. Specifically, Chapter 95 modifies N.J.S.A. 18A:30-1 (Definition of Sick Leave) and N.J.S.A. 18A:30-4 (Physician’s Certificate Required for Sick Leave). The revisions are effective immediately.
Prior to Chapter 95, school employees were permitted only to use sick leave when the employee was personally ill or injured or required to quarantine due to a contagious illness in the employee’s household. Chapter 95 greatly expands the scope of the prior statute to permit the use of sick days when an employee is not personally ill or injured.
Employees may now use sick leave as follows:
1. When the employee seeks care, diagnosis, or treatment for a mental illness;
2. When the employee’s family member seeks care, diagnosis, or treatment for a physical or mental illness;
3. When the employee, or the employee’s family member, pursues preventative medical care;
4. When the employee is absent due to circumstances resulting from the employee or the family member being a victim of domestic or sexual violence in order to obtain:
a. Medical attention to recover from a physical or psychological injury or disability caused thereby;
b. Services from a designated domestic violence agency or victim services organization;
c. Psychological or other counseling;
d. Relocation; or
e. Legal services or due to the employee’s participation in any criminal or civil legal proceeding related to the domestic or sexual violence;.
5. For up to seven (7) days upon the death of an employee’s family member;
6. To attend a child’s school related conference, meeting, or other event required or requested by the child’s school personnel;
7. To attend a meeting regarding care provided to a child in connection with the child’s health condition or disability; or
8. The school or place of care of the employee’s child is closed by a public official or declared State of Emergency caused by an epidemic or other public health emergency; or
9. When the employee has been exposed to a contagious disease or is quarantined for the disease in the employee’s immediate household.
The statute is also revised to define “child” as a biological child, adopted child, foster child, step child of the employee or the employee’s domestic or civil union partner, as well as a child who is a “legal ward” of the employee.
“Family member” is now defined as child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of the employee, the employee’s spouse, domestic partner, or civil union partner. The definition of “family member” also includes any individual related by blood to the employee, or whose “close association” with the employee is the equivalent of a family relationship. This encompasses non-blood relationships who serve in a familial-like relationship to the employee.
In addition to the changes made to N.J.S.A. 18A:30-1, Chapter 95 modifies N.J.S.A. 18A:30-4. Previously, a physician’s certificate could be required by the district at any time for any use of sick leave. Now, Chapter 95 expands the type of reasonable documentation permitted and adjusts the timelines to provide it. When an employee is personally ill or injured, the Legislature, in the Legislative statement, specifically maintained the district’s ability to require a physician’s certificate at any time. For all other permitted uses, additional forms of reasonable documentation may be provided. Such documentation is required only after three (3) days of consecutive illness when the reason for leave is not due to the employee’s own personal illness or injury.
Chapter 95 also provides boards or districts with the authority to require advanced notice when the use of sick leave is foreseeable. In such cases, a board may require such notice not more than 7 calendar days prior to the date leave is to begin. Such notice must provide the intention to use sick leave and the expected duration of leave. Chapter 95 also adds the requirement that employees “shall make a reasonable effort” to schedule the use of foreseeable sick leave in a manner which does not unduly disrupt school district operations.
If the reason for leave is not foreseeable, Chapter 95 permits a board or a district to require an employee to provide notice of the intent to use sick leave “as soon as practicable” but only if a board has previously notified employees of this requirement.
Under Chapter 95, the board has the power to prohibit the use of foreseeable leave on certain dates, and may require “reasonable documentation” for unforeseeable sick leave used on those dates. When the employee seeks leave due to the employee’s or a family member’s status as a victim of domestic or sexual violence, “reasonable documentation” includes:
1. Medical documentation;
2. Law enforcement agency record or report;
3. Court order;
4. Documentation showing the perpetrator has been convicted of sexual or domestic violence;
5. Certification from a certified Domestic Violence specialist or representative of a designated domestic violence agency or other victims services organization; or
6. Other documentation provided by someone (including but not limited to a social worker, counselor, or clergy member) who has assisted the employee or family member in dealing with the domestic or sexual violence
When the employee seeks leave due to the closure of the employee’s child’s school or place of care, “reasonable documentation” includes a copy of the order or determination by the health authority. In all other cases, “reasonable documentation” is defined as documentation from a health care professional treating the employee or his family member indicating the need for leave and, if possible, the number of days of leave.
Chapter 95 represents a significant expansion in the use of sick leave as many of these new reasons were previously permitted leaves only upon mutual negotiation in an employee’s contract or collective bargaining agreement.
Administrators are reminded that statutory language, in many cases, may preempt previously negotiated provisions of contracts or collective bargaining agreements. If such contract or agreement is silent regarding leaves for those items now covered by Chapter 95, employees are automatically permitted to use sick leave for these reasons. If such contract or agreement contains language regarding the types of absences addressed by Chapter 95, a case by case analysis may be necessary to determine how, if at all, Chapter 95 impacts contractual language.
As administrators navigate the new requirements, we recommend that our office be consulted to make any required legal determinations under Chapter 95.
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. . Questions about individual issues should be addressed to Jaclyn M. Morgese at email@example.com of Cornell, Merlino, McKeever & Osborne