Maryland Gets Sick (Paid Leave That Is)

Thanks to the Maryland General Assembly’s override of Governor Larry Hogan’s veto, the Maryland Healthy Working Families Act (the Act) will go into effect on February 11, 2018, unless its implementation date is extended by the legislators.

General Requirements

The Act generally requires employers with 15 or more employees to provide earned sick and safe leave to eligible employees that is paid at the same wage rate as the employee normally earns. Tipped employees do not have to be paid more than the applicable minimum wage for earned sick and safe leave. Earned sick and safe leave begins to accrue on January 1, 2018, or if the employee is hired after that, the date the employee commenced working. An employer who employs 14 or fewer employees must at least provide an employee with unpaid earned sick and safe leave.

Exclusions

Among the exclusions of eligible employees are individuals who are employed by a temporary services agency to provide temporary staffing services to another person if the temporary services agency does not have day-to-day control over the work assignments and supervision of the individual while the individual is providing the temporary staffing services. Also excluded are workers who regularly work fewer than 12 hours per week, are under the age of 18, are independent contractors, or work on an “as needed” basis in the health or human services industry.

There is also an exception for employers in the construction industry who are parties to a collective bargaining agreement. In that case, the employer and the union may expressly waive the Act’s requirements. Existing CBAs entered into before June 1, 2017 are not subject to the Act for the term of the contract.

Accrual & Carryover Issues

Earned sick and safe leave accrues at the rate of at least one hour for every 30 hours an employee works. The Act does not require an employer to allow an employee to earn more than 40 hours of earned sick and safe leave in a year, or to use more than 64 hours in a year. Unused sick and safe leave carries over from year to year, but an employer can cap that carryover at 40 hours. For convenience, an employer may award an employee at the beginning of a year the full amount of earned sick and safe leave that an employee would earn over the course of the year, rather than awarding the leave as it accrues during the year. Unused sick and safe leave does not have to be paid on termination of employment.

Use of Earned Sick & Safe Leave

An employer must allow an employee to use earned sick and safe leave:
  1. To care for or treat the employee’s mental or physical illness, injury or condition;
  2. To obtain preventive medical care for the employee or the employee’s family member (i.e., biological, adopted, foster, and step children, and those for whom the employee has legal or physical custody or guardianship or with respect to whom the employee stands in loco parentis; biological, adoptive, foster, or step parents of the employee or the employee’s spouse; the legal guardian of the employee; an individual who acted as a parent or stood in loco parentis to the employee or the employee’s spouse when they were minors; the employee’s spouse; and biological, adopted, foster, or step grandparents, grandchildren, or siblings of the employee);
  3. To care for a family member with a mental or physical illness, injury, or condition; for maternity or paternity leave;
  4. For maternity or paternity leave; or
  5. If the leave is being used by the employee under certain circumstances due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.

Requesting Earned Sick & Safe Leave

If the need for earned sick and safe leave is foreseeable, an employer may require the employee to provide no more than seven days’ reasonable advance notice of the need for the leave. If the need for the leave is not foreseeable, the employee must provide notice to the employer as soon as possible and generally comply with the employer’s notice or procedural requirements for requesting or reporting other leave. An employer may deny a request for leave if the employee fails to provide the required notice and the employee’s absence will cause a disruption to the employer.

Enforcement

The Act will be enforced by the Commissioner of Labor and Industry. The Commissioner will investigate complaints and if a violation is found, direct the payment of any unpaid sick and safe leave, and any actual economic damages. The Commissioner also has discretion to require the payment of up to three times the employee’s hourly wage for each violation and to issue a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance with the Act. The Commissioner will be creating a poster, model notice, and a model sick and safe leave policy that employers can use in their employee handbooks. Aggrieved employees may also bring civil actions to enforce the Act. If successful, they can be awarded treble damages, punitive damages, and their attorneys’ fees and costs.

Impact on Montgomery County & Prince George’s County Sick Leave Laws

The Act preempts the authority of a local jurisdiction to enact a law on or after January 1, 2017 that regulates sick and safe leave provided by an employer other than the local jurisdiction. Thus, employers must comply with the new Act and continue to comply with the Montgomery County paid sick leave law (which is more onerous in some circumstances) because it was passed in 2016. The Prince George’s County law, which was enacted in December 2017, is preempted.

Takeaways

Maryland joins the growing number of states and local jurisdictions that have passed paid sick leave laws. This is a trend that is likely to continue in 2018. Affected employers should update their policies and train their managers to comply with the Act.

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