By Paul H. Green, Esq.


On July 3, 2023, Governor Murphy signed P.L. 2023, c. 95 into law. The new statute, which was suddenly adopted with little notice and is effective immediately, vastly expands the subjects for which school district employees may use paid sick leave days.
 

Under the prior statutes, school employees received a minimum of ten sick days per year which could be used for the employee’s own illness or injury, or exclusion from school due to a contagious disease or quarantine. The new law does not alter the ten-day minimum, but gives school employees the right to use those days for many other purposes not only for themselves but also on behalf of others. The new law also addresses verification of the use of sick leave.

Allowable Purposes

In addition to the employee’s own personal illness or injury, school employees can now use sick leave days for any of the following reasons:

1. For diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee.
2. For the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, injury or other adverse health condition, or during preventive medical care for the family member.
3. Absence necessary due to circumstances resulting from the employee, or a family member of the employee, being a victim of domestic or sexual violence, if the leave is to allow the employee to obtain for the employee or the family member:
   1. medical attention needed to recover from physical or psychological injury or disability caused by domestic or sexual violence;
   2. services from a designated domestic violence agency or other victim services organization;
   3. psychological or other counseling;
   4. relocation; or
   5. legal services, including obtaining a restraining order or preparing for, or participating in, any civil or criminal legal proceeding related to the domestic or sexual violence.
4. The death of a family member for up to seven days.
5. To attend a child’s school-related conference, meeting, function or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding care provided to the child in connection with the child's health conditions or disability.
6. The school or place of care of a child of the employee is closed by order of a public official or because of a state of emergency declared by the Governor, due to an epidemic or other public health emergency.
7. The employee is exposed to a contagious disease or is quarantined for the disease in the employee’s immediate household (this modifies the prior statute by replacing the requirement that the exclusion be ordered by authorities to a lesser standard of mere exposure to the disease).

Family Members Covered

An employee is now permitted to use sick leave on behalf of a wide variety of family members, defined as including the employee’s:

• Child 
• Grandchild
• Sibling
• Spouse, domestic partner, or civil union partner
• Parent or grandparent
• Spouse, domestic partner, or civil union partner of the employee’s parent or grandparent
• Sibling of an employee’s spouse, domestic partner, or civil union partner
• Any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.

The phrase “equivalent of a family relationship” is quite broad and will make it difficult for districts to deny use of sick leave in those instances.

Verification

The law provides for verification of use of sick leave but also limits districts’ authority to do so. Reasonable verification for the various permitted leave uses is defined as:

• Employee’s personal illness/injury: Districts were previously permitted to require a doctor’s note after the first use of sick leave. Districts may now only require supporting documentation after three consecutive days of absence.
• Employee’s medical treatment or medical care for family member: documentation signed by a health care professional who is treating the employee or the family member of the employee indicating the need for the leave and, if possible, number of days of leave.
• Domestic or sexual violence: any of the following: (1) medical documentation; (2) a law enforcement agency record or report; (3) a court order; (4) documentation that the perpetrator of the domestic or sexual violence has been convicted of a domestic or sexual violence offense; (5) certification from a certified Domestic Violence Specialist or a representative of a designated domestic violence agency or other victim services organization; or (6) other documentation or certification provided by a social worker, counselor, member of the clergy, shelter worker, health care professional, attorney, or other professional who has assisted the employee or family member in dealing with the domestic or sexual violence.
• Closure of school or childcare: a copy of the order of the public official or the determination by the health authority.

It is not clear at this time whether districts may require supporting documentation for the other categories of permitted leave. However, such a requirement appears to remain a negotiable subject.

Advance notice

Districts may require advance notice of use of sick leave as follows:

• Foreseeable leave: Districts may require advance notice of up to seven calendar days prior to the date the leave is to begin, of the intention to use the leave and its expected duration. The employee must make a reasonable effort to schedule the use of sick leave in a manner that does not unduly disrupt district operations.
• Unforeseeable leave: a district may require an employee to give notice of the intention as soon as practicable, if it has notified the employee of this requirement.
• Blackout dates: districts may prohibit employees from using foreseeable sick leave on certain dates, and require reasonable documentation if sick leave that is not foreseeable is used during those dates.

Takeaways

The expansion of sick leave will undoubtedly increase employee absenteeism and place additional pressure on the already scarce supply of substitutes. Districts should immediately revise their electronic absence reporting systems or other forms to encompass the statutory changes. Districts also should immediately notify employees that they are required to provide notice as soon as practicable of the use of unforeseeable leave. Board policies should be updated and training provided to administrative and HR staff.
 

It is important to remember that boards of education and their administrators retain the ability to deal with excessive absenteeism or patterns of absence; the provision of leave does not mean that it may be abused or that the impact of excessive absenteeism cannot be addressed.
 

Some confusion has arisen over the new legislation’s statement that it does not supersede any law providing collective bargaining rights for school district employees. In our view, this merely preserves employee majority representatives’ right to negotiate for greater benefits or to address other negotiable topics arising in the context of employee leave. To the extent collective negotiations agreements already contain leave rights now granted by statute, we expect the statutory rights will be available in addition to those already available under contract. The new law does not as a general rule permit boards to argue that they may enforce contractual provisions that are more limited than the statute, or that the contractual leave provisions supersede those of the statute; however, this is a complex subject and counsel should be consulted on its application to specific circumstances, as well as all other aspects of the new law’s implementation.
 

Schenck Price’s school law attorneys are available to advise clients on the ramifications and implementation of this expansive new law. If you have any questions about this legal alert or any other related issues, please contact Paul H. Green at phg@spsk.com or (973) 540-7305.
 

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.