By: Nicole Windsor, Esq.
On February 11, 2018, the “Maryland Healthy Working Families Act” (the “Act”) went into effect. The new law requires employers to provide “earned sick and safe leave” (“ESS”) to employees to use for themselves and to care for their family members as described below. Existing paid leave may be used to satisfy the law’s requirements provided that the leave policy allows the use of paid leave as required by the Act. This would include, among other things, making sure any existing paid leave policy meets the Act’s rate of accrual, carry-over, notice of use, length of elimination period, and non-retaliation provisions.
Employers with fewer than 15 employees are required to, at a minimum, provide unpaid ESS, while employers with 15 or more employees must provide paid ESS. For purposes of the Act, the number of employees is calculated by using the average monthly number of all employees (including full-time, part-time, temporary, and seasonal) employed in Maryland during the immediately preceding 12 months.
ESS must accrue at a rate of at least 1 hour for every 30 hours worked, up to a maximum of 40 hours annually. Accrual commences upon hire, but an employer may prohibit the use of ESS during the initial 106 calendar days of employment.
Employees working 12 hours a week or more are eligible for ESS. Under the accrual method, an employee working 40 hours a week will accrue 40 hours of ESS in 30 weeks; an employee working 25 hours a week will accrue 40 hours of ESS in 48 weeks; and an employee working 12 hours a week will earn approximately 21 hours of ESS in 52 weeks. If the employer elects the accrual method, it must allow employees to carry over up to 40 hours of ESS annually.
Employers may also opt to grant the full amount of ESS an employee is expected to earn during the upcoming year at the beginning of the year. If the employer grants the full ESS “bank” at the beginning of the year, no carry over is required.
ESS may be used for the following reasons:
- To care for or treat the employee’s own mental or physical illness, injury, or condition.
- To obtain preventive medical care for the employee or family member.
- To care for a family member’s mental or physical illness, injury, or condition.
- For maternity or paternity leave.
- For absences due to domestic violence, sexual assault, or stalking during the employee’s relocation or to obtain for the employee or family member: (i) medical or mental health attention; (ii) services from a victim services organization; or (iii) legal services
For purposes of the Act, a family member includes a spouse, child, parent, grandparent, grandchild, or sibling.
The following types of employees are exempt from the requirements of the Act:
- Employees who work less than 12 hours a week;
- Certain independent contractors;
- Certain associate real estate brokers and real estate salespersons;
- Individuals who are younger than 18 years of age before the beginning of the year;
- Individuals employed in the agricultural sector in certain agricultural operations as defined in §5-403 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code;
- Certain construction workers covered by a collective bargaining agreement; and
- Certain employees working on an as-needed basis in a health or human service industry
Notice and Use of Leave: If the need for ESS is foreseeable, an employee can be required to provide up to 7 days of notice. If it is not foreseeable, an employee may be required to provide notice of the need for ESS as soon as practicable and must provide notice in a manner consistent with the employer’s normal unscheduled notice policy (if those requirements do not interfere with the employee’s ability to use ESS leave). The employer cannot require the employee to look for or find a replacement worker.
Verification: Employers can request verification of the appropriate use of leave if an employee uses more than 2 consecutive scheduled shifts of ESS. If the employee fails to provide requested verification, subsequent requests to take ESS for the same reason may be denied.
Employers do not have to pay employees for ESS upon termination. However, if an employee is rehired within 37 weeks, the employer must reinstate the bank of unused ESS unless it was paid out upon termination. If an employer acquires another company and retains employees from that company, the employees retain the ESS accrued under the prior company.
Employer’s Notice and Recordkeeping Requirements: Employers must provide employees with a written statement of available ESS. This requirement may be satisfied through an electronic system where the employee can access his or her leave balances. Employers must also provide notice to employees that they are entitled to ESS. A draft poster can be accessed at https://www.dllr.state.md.us/paidleave/paidleaveposter.pdf.
Prohibited Actions: Employers may not take adverse action (defined as discharge, demotion, threatening discharge or demotion, or any other retaliatory action that results in a change to the employee’s terms and conditions of employment) against employees for exercising in good faith their rights under the Act. Nor may employers interfere with, restrain or deny the employees’ exercise of ESS rights. Employers also cannot count ESS against an employee under an absence policy. Employers may prohibit the improper use or a pattern of abuse of ESS.
DLLR Enforcement against Employers: An employee can file a complaint regarding a violation of the Act with the DLLR. Complaints will be investigated within 90 days and the DLLR will attempt to resolve disputes through mediation. If the DLLR finds a violation and is unable to reach informal resolution, the DLLR will issue an order that describes the violation and directs payment for the ESS and economic damages. The DLLR may also (but is not required to) direct the payment of up to three (3) times the value of the employee’s wage, and may assess a civil penalty of up to $1000 for each employee for whom the employer is noncompliant.
If the employer does not comply with the DLLR’s order within 30 days, the DLLR may bring an action against the employer and may bring an action to enforce any civil penalty order. In addition, the employee may bring a civil action in court to enforce a DLLR order within 3 years of the order date. The court may (but is not required to) award three (3) times the value of the unpaid ESS, punitive damages, attorneys’ fees and costs, and may order injunctive relief or other relief as deemed appropriate.
While the DLLR has not yet issued implementing regulations for the Act, additional information about the law may be accessed at https://www.dllr.state.md.us/paidleave/paidleavefaqs.pdf.
What should Maryland employers do?
- Review your existing paid time off policies to identify whether they comply with the Act
- Make sure all employees working at least 12 hours a week are earning ESS
- Make sure all employees receive notice of their rights under the Act
- Review payroll, recordkeeping and administrative procedures
- Make sure that you are keeping records regarding employees’ accrual and use of ESS for at least 3 years (failure to maintain these records creates a rebuttable presumption that an employer violated the Act).