Matthew J. Haas, Member

In a hotly contested political debate, including a veto by Maryland Governor Larry Hogan and its override by the Senate, Maryland has become the ninth state to require private employers to provide sick leave. Under the Healthy Working Families Act (HWFA), Maryland employers are required to provide “sick and safe leave” to employees. The new law took effect on February 11, 2018. Accordingly, employers with Maryland employees should take immediate action to comply.

Covered “Sick and Safe Leave”

Under the HWFA, employers must allow eligible employees (that is, employees whom the HWFA does not consider "excluded employees," as defined below) to use “sick and safe leave” in the following situations:

1. for mental or physical health purposes for themselves or a family member;
2. for preventive medical care for themselves or a family member;
3. for maternity or paternity leave; or
4. for absence due to domestic violence, sexual assault, or stalking that targets the employee or a family member.

Paid vs. Unpaid Leave

All employers are required to provide leave under the HWFA. However, only businesses having a monthly average of at least 15 employees over the preceding year are required to provide paid leave. A person is counted as an employee in a given month if he or she worked at all in that month. Thus, full-time, part-time, temporary, and seasonal employees are "counted" equally.

Limitations and Restrictions

Limitations apply to the amount of leave that an employee may accrue and use. The law calls for leave beginning to accrue as of January 1, 2018, and leave is to be available for use 106 days after the employee begins work. Under the law, employers may opt to provide 40 hours of leave to eligible employees at the beginning of the year or, alternatively, employees can accrue leave over time at a minimum rate of one hour of leave for every 30 hours worked (up to a maximum of 40 hours of leave per year). Employees may carry over up to 40 hours of unused leave from year to year, but employers may limit the amount of sick and safe leave used, to 64 hours per year. Employers are not required to pay out unused, accrued leave upon an employee’s termination or resignation.

Certain notice restrictions also apply. For example, if the need for leave is foreseeable, employers may require employees to provide advance notice of up to seven days before using the leave. If the need for leave is not foreseeable, notice must be given as soon as practicable.

Excluded Employees

Employers are not required to provide leave for all employees. Maryland’s HWFA does not apply to the following:

1. Construction Industry Employees who are covered by a collective bargaining agreement (CBA) that waives the requirements of the HWFA or by any CBA entered into before June 1, 2017;
2. Employees who work less than 12 hours per week;
3. Employees under the age of 18;
4. Independent contractors;
5. Temporary services employees provided by an agency;
6. Real estate salespersons or licensed real estate brokers;
7. Certain as-needed employees who work in health or human services; and
8. Agricultural employees.

Action Required for Employers

Maryland’s HWFA also imposes notice and record keeping requirements on employers. Employers must notify employees in writing of their paid sick and safe leave rights. In addition, employers must furnish to employees for each pay period, a written statement (via their paystub or online portal reflecting the same) of the amount of earned leave available for use. Employers must keep records pertaining to earned and used leave for each employee for at least three years.

To assist employers with implementing the HWFA, the Maryland Commissioner of the Division of Labor and Industry is required to develop a poster, model notice, and model sick and safe leave policy that employers may use. In addition, Maryland’s Governor issued an executive order creating the Office of Small Business Regulatory Assistance to assist employers with the new law. 

Penalties for Failure to Comply

Employers who fail to comply with Maryland’s HWFA are subject to significant penalties. Employees may submit complaints directly to the Division of Labor and Industry, and if the Commission finds a violation, the Commission may award the employee damages, up to three times the value of any unpaid leave, plus economic damages and a civil penalty. An employee may initiate a civil action to enforce the order of the Commission, and an employee may be entitled to three times the unpaid leave, punitive damages, attorney’s fees, and other damages.

Conclusion

Given the new requirements that took effect on February 11, 2018, Maryland employers should promptly review and revise their internal policies and procedures to comply with the new law. Lewis Rice’s Labor & Employment attorneys have extensive experience preparing and amending employers’ policies and procedures to comply with applicable laws. Please feel free to contact us with questions or concerns regarding this new law or other employment issues.