1.22.2018

What is the Maryland Healthy Working Families Act?

In March of 2017, Maryland’s General Assembly passed the Maryland Healthy Working Families Act (the “Act”).  Governor Hogan vetoed the Act in May of 2017, following the conclusion of the legislative session. On January 12, 2018, however, the General Assembly overrode the Governor’s veto.  As a result, the Act will become effective on February 11, 2018, unless the General Assembly takes further legislative action to postpone the effective date to allow employers more time to adjust to the Act’s requirements (legislators are considering extending the effective date until April 12, 2018).  

With few exceptions, the Act requires Maryland employers to provide employees with up to 5 days of “sick and safe leave.” For employers with 15 or more employees, the sick and safe leave must be paid, while the leave may be unpaid for employers with less than 15 employees.p>

Paid sick and safe leave must be paid at the employee’s usual wage rate, except that tipped employees must be paid the applicable minimum wage. 

Are all employees covered?

The Act excludes from coverage:

--Employees who regularly work less than 12 hours a week;

--Construction workers covered by a bona fide collective bargaining agreement that waives the requirements of the Act;

--On-call employees in a health or human services industry who may reject or accept an offered shift, are not guaranteed work, and are not employed by a temporary staffing agency; and

--Employees under the age of 18. 

The Act also does not apply to independent contractors, commissioned real estate agents, certain staffing agency workers, and certain agricultural workers.

How much sick and safe leave can employees earn, carry over, and use each year?

Under the Act, employees must earn 1 hour of sick and safe leave for every 30 hours worked, up to a cap of 40 hours of sick and safe leave per year. An exempt employee is assumed to work 40 hours each workweek (unless the employee’s normal workweek is less than 40 hours).  Employers may define the leave year as any regular and consecutive 12-month period (e.g., calendar or fiscal year).

Employees do not earn sick and safe leave: during a 2-week pay period in which the employee works fewer than 24 hours; during a 1-week pay period if the employee worked fewer than a combined total of 24 hours in the current and immediately preceding pay period; or in a pay period in which the employee is paid twice a month regardless of the number of weeks in the pay period and the employee worked fewer than 26 hours. 

Employees may carry over to the next year up to 40 hours of unused leave, with one important exception.  If an employee receives the full annual allotment of sick and safe leave at the beginning of the year, the employer need not permit carry over. 

Employees may use up to 64 hours of sick and safe leave each year, and employers may cap total sick and safe leave accrual (including carry over) at 64 hours.   Employees may use sick and safe leave in the smallest increment that the employer’s payroll system uses to account for absences (not to exceed 4 hours).

Employees begin accruing sick and safe leave immediately upon hire, but employers may prohibit the use of leave during the first 106 calendar days of employment.

Do employers have to pay employees for unused sick and safe leave when they leave employment?

Employers are not required to compensate employees for unused sick and safe leave upon separation from employment.  If, however, an employee is rehired by the same employer within 37 weeks after separation, the employer must reinstate any unused sick and safe leave the employee had upon leaving employment, unless the employer voluntarily paid out the employee’s unused leave.

An employer who acquires another employer must allow any retained employees of the original employer to keep all unused sick and safe leave accrued during employment with the original employer.

For what reasons may sick and safe leave be used?

Sick and safe leave may be used to care for an employee’s physical or mental illness, injury, or condition or that of a family member; to obtain preventative medical care for the employee or a family member; for maternity or paternity leave; or to relocate or seek medical or mental health attention, victim services, or legal assistance for the employee or a family member as a result of domestic violence, sexual assault, or stalking.

Family member is broadly defined by the Act, and includes:

- the employee’s children (including biological, adopted, foster, or  step children, a child for whom the employee has legal or physical custody or guardianship, or a child for whom the employee stands in “loco parentis”, i.e., acts in the place of a parent);

- the employee’s or employee’s spouse’s parents (including biological, adoptive, foster or step parents, a legal guardian, and an individual who acted as a parent or stood  in “loco parentis” to the employee or the employee’s spouse when the employee or employee’s spouse was a minor);

- the employee’s spouse;

- the employee’s grandparents (including biological, adopted, foster, or step grandparents);

- the employee’s grandchildren (including biological, adopted, foster, or step grandchildren); and

- the employee’s siblings (including  biological, adopted, foster, or step siblings).

Can an employer require verification that an employee used sick and safe leave for a reason specified in the Act? 

Yes, an employer may require verification that an employee used leave appropriately if the leave was taken for more than two consecutive scheduled shifts.  An employer may also require verification if the leave was taken during the period between the first 107 and 120 calendar days of employment and the employee agreed to provide such verification at the time of hire. If an employee fails or refuses to provide verification, the employer may deny a subsequent request to take sick and safe leave for the same reason.  

Do employees have to give notice before taking leave? 

If the need for sick and safe leave is foreseeable, employees may be required to provide advance notice of not more than 7 days before the leave would begin. If the leave is not foreseeable, the employee must provide notice as soon as practicable and must generally comply with the employer’s notice requirements for reporting leave. Employers may deny leave if an employee fails to provide the required notice AND the absence will cause a disruption to the employer.

The Act also contains a special provision for private employers providing services to developmentally disabled or mentally ill individuals, who may deny a leave request if the need for leave is foreseeable, the employer is unable to find a replacement after reasonable efforts, and the employee’s absence will cause a disruption in services to at least one developmentally disabled or mentally ill person.

An employer may not require an employee requesting sick and safe leave to search for or find a replacement to work in the employee’s stead. 

Does the Act contain notice and recordkeeping requirements for employers?

Employers must provide either a written statement of an employee’s available sick and safe leave each time wages are distributed or an online system through which employees may check their leave balance.  Employers must keep internal records of the amount of sick and safe leave earned and used for three years. The Commissioner may inspect an employer’s records to determine compliance with the Act.  Failing to keep accurate records or allow the Commissioner to inspect a record creates a rebuttable presumption that the employer violated the Act.

In addition, employers must provide notice of employees’ entitlement to leave under the Act, how leave is accrued, the purposes for which leave may be taken, that the employer may not take an adverse action against an employee for taking sick and safe leave, and information about how employees may report alleged violations of the Act.  The Act is not specific as to how notice must be provided, but directs the Maryland’s Commissioner of Labor and Industry to create for employers’ use a model poster, notice, and sick and safe leave policy.

Can an employer penalize employees for taking sick and safe leave or enforce a “no fault” attendance policy? 

An employer may not take an adverse or retaliatory action against an employee for taking sick and safe leave or exercising any other right under the Act (including filing a complaint against the employer).  Employers also may not apply an attendance policy that includes earned sick and safe leave absences as an absence that may lead to or result in an adverse action against the employee.

Employers may, however, adopt and enforce a policy prohibiting abuse of sick and safe leave. 

What are the enforcement mechanisms and penalties for violating the Act?

If an employee believes that an employer has violated the Act, the employee may file a written complaint with Maryland’s Commissioner of Labor. The Commissioner will investigate the complaint and attempt to resolve it informally through mediation.  If the Commissioner is unable to resolve the issue through mediation, and the Commissioner determines that an employer has violated the Act, the Commissioner issues an order describing the violation and directing the payment of any unpaid sick and safe leave and any actual economic damages.  The Commissioner may, in its discretion, order payment of three times the value of the employee’s hourly wage for each violation and may assess a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance with the Act.  If an employer does not comply with the Commissioner’s order, the Commissioner, the attorney general, or the employee may bring a judicial action to enforce the order.  If the employee brings the action on their own behalf and prevails, the court may award three times the value of the employee’s unpaid leave, punitive damages, attorneys’ fees, and injunctive relief.

Employees may not file a complaint or testify in an action against an employer in bad faith.  An employee who does so faces a misdemeanor charge and a fine not exceeding $1,000. 

If an employer already provides paid leave, will it have to modify its paid time off or sick leave policies?

If an employer already permits employees to accrue and use leave under terms that are at least equivalent to the sick and safe leave required by the Act, the employer need not change its policies.  If, however, the employer does not meet the minimum requirements of the Act, modifications will be necessary.

Does the Act have any impact on the sick leave laws passed by Montgomery County and Prince George’s County?

The Act preempts a county or local law enacted on or after January 1, 2017.  Montgomery County’s law, which contains slightly different requirements than the Act for employers in Montgomery County, was enacted before this date and remains in effect.  Prince George’s County’s law was enacted after January 1, 2017 and is preempted and no longer applicable to employers.  

What should employers do?

Employers should review their policies and practices for compliance with the Act, in consultation with counsel.



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Kathryn Kelley Hoskins

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410.347.1360

khoskins@gejlaw.com

Kathy Hoskins concentrates her practice on education law, employment law, and general corporate law.

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