Paid Sick Leave Under Maryland Healthy Working Families Act Goes Into Effect
The Maryland Healthy Working Families Act requires certain Maryland employers to offer paid sick leave to their employees. It took effect on February 11, 2018— 30 days after the legislature overrode Governor Larry Hogan's veto of the Act. On February 8, the Maryland Senate voted to delay implementation of the Act, but the vote stalled in the Maryland House of Delegates.
The requirement of paid sick and safe leave applies to employers with at least 15 employees. The definition of employee includes those who are full-time, part-time, seasonal, or temporary.
The Act does not apply to employees who
- regularly work fewer than 12 hours a week;
- are under the age of 18;
- are independent contractors;
- work in the agricultural sector on an agricultural operation; or
- work on an as-needed basis in the health or human services industry.
The Act does apply to employers subject to a collective bargaining agreement—with a few exceptions. For employers in the construction sector that have entered into collective bargaining agreements, the employer and the labor union may jointly agree to waive the requirements of the Act. "Construction industry" does not include an employee employed as any of the following:
- Building cleaner;
- Building security officer;
- Handyperson; or,
- Building superintendent.
It is unclear whether the Act will only apply to those engaged in the manual labor of construction or if it could also be applied to those who interact with construction materials, whether it be through sale, transport, storage, or otherwise.
Additionally, if any employers already have collective bargaining agreements in place that were entered into before June 1, 2017, the Act's requirements do not apply for the duration of the term of the agreement. This postponement does not apply to extensions, options to extend, or renewals of the original collective bargaining agreement.
Finally, employers with 14 or fewer employees must provide unpaid earned sick and safe leave.
For eligible employees, the employer must provide paid leave for the following reasons:
- Care for the physical or mental health of the employee or a family member;
- Preventative medical care for the employee or a family member;
- Maternity or paternity leave; or
- To obtain relief in response to domestic or sexual assault of the employee or a family member.
Under the Act, employers can choose how leave is earned. Eligible employees can either accrue up to 40 hours of paid leave a year, or employers can award the entire 40 hours at the beginning of each year. If employers choose to use the accrual method, leave must accrue at the rate of one hour for every 30 hours worked.
If an employer's existing paid time off (PTO) policy—including vacation, sick days, short-term disability, floating holidays, parental leave, or other PTO—permits employees to access and accrue leave at the same or greater rate as under the Act, and leave can be used for the same reasons, employers need not provide additional sick and safe time.
Additionally, employees can carry over up to 40 hours of paid leave a year—but employers can cap use of paid leave at 64 hours per year.
If an employee is terminated, employers are not required to pay out unused, accrued sick leave. However, if the leave is not paid out, but the same employee is rehired within 37 weeks, the employer must reinstate the bank of previously unused leave.
Although paid leave must be granted to eligible employees, employers have the latitude to set restrictions on its use. For example, an employer may:
- forbid the use of paid leave until after the employee has worked 106 calendar days;
- set caps on leave accrual, including 64 hours total and 40 hours annually;
- refuse to pay out unused, accrued leave upon an employee's termination or resignation;
- require up to seven days' notice for the use of foreseeable leave; and
- implement policies intended to prevent the improper use of leave.
Additionally, the Act permits an employer to obtain verification that the leave was used for an appropriate purpose if the leave:
- was used for more than two consecutive scheduled shifts; or
- was used between the first 107 and 120 calendar days of employment and the employee agreed to provide such verification at the time of hire.
The employer and the employee may agree that, in lieu of paid leave, the employee will work additional hours or trade shifts with another employee. This decision must be voluntary.
Required Notice and Records
Employers must notify employees of their rights under the Act. The Maryland Commissioner of Labor and Industry is in the process of creating a poster that employers must display for employees. Further, each pay period, employers must provide a written statement to their employees outlining the amount of earned leave.
Finally, employers must keep a record for a minimum of three years of all the earned leave accrued and used by each employee.
Employees may file complaints with the Commissioner of Labor and Industry for alleged violations of the Act, including retaliation. The Commissioner has the authority to issue an order instructing the employer to comply with the Act. If the employer does not comply, the Commissioner may either bring an action to enforce the order for the civil penalty or request that the Attorney General bring an action on behalf of the employee. Additionally, within three years of the order, the aggrieved employee can bring a civil action to enforce that order. Successful employees may receive an award of treble damages, punitive damages, attorneys' fees, and injunctive relief.
Interaction with Local Sick Leave Laws
The Act preempts Maryland localities from passing their own sick and safe leave laws in the future. Preemption is retroactive to January 1, 2017. Therefore, employers presumably must still comply with Montgomery County's paid sick and safe leave law, because it was enacted in 2016.
Ballard Spahr's Labor and Employment Group routinely helps employers update their policies and procedures to comply with new laws and regulations.
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