UPDATE: MARYLAND PAID SICK AND SAFE LEAVE STILL CURRENTLY SCHEDULED TO GO INTO EFFECT FEBRUARY 11, 2018.
Emergency legislation to delay implementation of this law until July 1, 2018, is moving in the Maryland Senate. On Friday, February 2, it passed the Senate Finance Committee and will next be considered by the full Senate. After that, it would go to the House of Delegates for consideration. However, in the event implementation is not delayed, employers should be prepared to begin tracking sick and safe leave accrual on February 11, 2018.
Also of note, the Maryland Department of Labor, Licensing, and Regulation has taken the position that if the law goes into effect on February 11, 2018, accruals will commence on February 11, 2018, rather than be retroactive to January 1, 2018.
MARYLAND PAID SICK AND SAFE LEAVE LAW TO GO INTO EFFECT AS EARLY AS FEBRUARY 11, 2018
On May 25, 2017, Maryland’s Governor, Larry Hogan, vetoed the Maryland Healthy Working Families Act which had been passed by the Maryland General Assembly the prior month. Subsequently, on Friday, January 12, 2018, the Senate overrode the Governor’s veto one day after the House did the same and the Act became law. Although it has been reported that legislators are considering extending the implementation date by 90 days, the new law could go into effect as early as February 11, 2018. Below are some of the highlights.
Employer size determines whether leave is paid or unpaid
The new law will generally require employers that employ 15 or more employees to provide their employees with up to 40 hours of paid sick and safe leave per year. The earned sick and safe leave is to be paid at the same wage rate as the employee normally earns. For tipped employees, an employer is not required to pay more than the applicable minimum wage for earned sick and safe leave.
Employers that employ fewer than 15 employs will generally be required to provide their employees with up to 40 hours of unpaid sick and safe leave per year.
For the purpose of determining whether an employer is required to provide paid or unpaid earned sick and safe leave, the number of employees the employer employs is determined by calculating the average monthly number of employees employed by the employer during the immediately preceding year. All employees are included for purposes of this calculation.
Leave may be accrued or frontloaded
Employers may choose to either have employees accrue earned sick and safe leave or, alternatively, frontload earned sick and safe leave.
The accrual option
Under the accrual option, employees accrue earned sick and safe leave at the rate of at least one hour for every 30 hours worked. However, employers may limit annual accruals to 40 hours of earned sick and safe leave. Unused earned sick and safe leave of up to 40 hours will carry over to the following year. Employers may limit total accruals so that the accrued amount of earned sick and safe leave does not exceed 64 hours at any time. Employers may also limit employees to using a maximum of 64 hours of earned sick and safe leave in a year.
Employers can limit an employee from accruing earned sick and safe leave during periods of time an employee works less than a minimum threshold number of hours as follows: (1) a two week pay period in which the employee works fewer than 24 hours total; or (2) a one week pay period if the employee works fewer than a combined total of 24 hours in the current and the immediately preceding pay period; or (3) a pay period in which the employee is paid twice a month regardless of the number of weeks in a pay period the employee works fewer than 26 hours in the pay period.
Although the new law will not go into effect until February 11, 2018, at the earliest, the text of the law states that sick and safe leave shall start to accrue as of January 1, 2018, or, if the employee is hired after January 1, 2018, the date on which the employee begins employment with the employer.
The frontload option
Under the frontload option, at the beginning of the year, an employer awards employees the full amount of earned sick and safe leave the employee would earn over the course of the year rather than award the leave as it accrues during the year.
Purposes for which employees may use earned sick and safe leave
Employers are not required to allow employees to use earned sick and safe leave during the first 106 calendar days the employee works for the employer. After that time, employees must generally be allowed to use earned sick and safe leave for the following purposes:
- To care for or treat the employee’s mental or physical illness, injury, or condition.
- To obtain preventive medical care for the employee or employee’s family member.
- To care for a family member with a mental or physical illness, injury, or condition.
- For maternity or paternity leave.
- If the absence from work is necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member. The employee may use leave during the time that the employee has temporarily relocated due to the domestic violence, sexual assault, or stalking. The employee may also use leave to obtain for the employee or the employee’s family member:
- Medical or mental health attention that is related to the domestic violence, sexual assault, or stalking.
- Services from a victim services organization related to the domestic violence, sexual assault, or stalking.
- Legal services or proceedings related to or resulting from the domestic violence, sexual assault, or stalking.
An employer may require an employee to take earned sick and safe leave in an increment not exceeding four hours.
Employees may be required to provide notice prior to using leave
The law allows an employer to require employees to provide the employer with up to seven days’ advance notice of the need to use earned sick and safe leave when the need is foreseeable. If the need is not foreseeable, the employee can be required to provide the employer notice as soon as practicable and comply with the employer’s notice or procedural requirements for requesting or reporting other leave if those requirements do not interfere with the employee’s ability to use earned sick and safe leave.
No requirement to payout unused leave upon separation from employment
Although the new law does not require employers to pay an employee for any unused earned sick and safe leave when the employee leaves employment, if the employee is rehired by the employer within 37 weeks, the unused earned sick and safe leave must be reinstated. However, an employer is not required to reinstate unused earned sick and safe time if the employer already voluntarily paid out the unused earned sick and safe leave when the employee left employment.
Employer notices to employees and recordkeeping requirements
An employer shall notify employees of their rights to earned sick and safe leave. Maryland’s Commissioner of Labor and Industry is required to make available to employers a poster and model notice that may be used to satisfy this obligation.
When wages are paid to an employee, an employer must provide a written statement regarding the amount of earned sick and safe leave that is available for use by the employee. The statement may be provided by any reasonable method.
An employer is required to keep for at least three years a record of:
- Earned sick and safe leave accrued by each employee.
- Earned sick and safe leave used by each employee.
Individuals not covered under the new law
Certain classes of individuals are not covered under the new law and employers are not required to provide earned sick and safe leave to such individuals. These include, but are not limited to:
- Individuals who regularly work less than 12 hours a week for an employer.
- Individuals under the age of 18.
- Independent contractors.
- Real estate agents and brokers.
- Individuals employed in the agricultural sector.
Prohibitions against interference and retaliation
An employer is prohibited from interfering with, restraining, denying the exercise of a protected right under the new law, and taking adverse action against an employee who exercises a right under the new law. Employees may report violations to the Commissioner of Labor and Industry and the Commissioner has authority to investigate complaints and issue penalties. The law also allows employees to bring private causes of action.
The Montgomery County Earned Sick and Safe Leave Law is still in effect
The new law does not preempt the Montgomery County Earned Sick and Safe Leave Law and Montgomery County’s more generous leave requirements. Employers with employees working in Montgomery County will be required to comply with the Montgomery County Earned Sick and Safe Leave Law as well as the new law.
What happens next?
MBA will monitor developments such as whether the new law’s implementation date will be extended and when Maryland’s Commissioner of Labor and Industry makes the workplace poster available to employers. In the meantime, employers in Maryland should prepare for the new law to go into effect as early as February 11, 2018.
If you have questions or need assistance, please contact one of our HR Consultants at 888-622-6460.