An Overview of Maryland’s New Paid Sick and Safe Leave Law

On January 12, 2018, Maryland enacted the Healthy Working Families Act (Act). In so doing, Maryland became the ninth state (along with the District of Columbia) to require employers to provide sick and safe leave to their employees.

Below is a list of frequently asked questions that address the obligations and rights of employers and employees under the Act.

1. What is the name of the statute and when does it become effective?
The Maryland Healthy Working Families Act is currently scheduled to go into effect on February 11, 2018.

2. What is earned sick and safe leave and how can it be used?
Earned sick and safe leave means paid or (unpaid) leave away from work that is provided by an employer and can be used by the employee for the purposes authorized by the Act. Employees can use sick and safe leave under the Act for the following reasons:

1. To care for an employee’s own physical or mental illness, injuries or
   conditions, or to obtain preventive medical care;
2. For maternity or paternity leave;
3. To care for a family member with a physical or mental illness; injury or
   condition or to obtain preventive medical care for an employee’s family
   member; and
4. For absences resulting from sexual assault, domestic violence, or
   stalking committed against an employee or a covered family member of an employee.

3. Who is considered a covered “family member”?
Under the Act, a covered “family member” includes parents, spouses, children, grandparents, grandchildren and siblings. A “parent” under the Act is defined as an adoptive, foster or step-parent, in addition to a biological parent of the employee or the employee’s spouse; a legal guardian of the employee or an individual who acted as a parent or who is in place of a parent to the employee or the employee’s spouse when the employee or the employee’s spouse was a minor. A “child” includes a foster, adopted, biological or stepchild of the employee, a child for whom the employee has guardianship or physical custody, or a child for whom the employee is in loco parentis regardless of the child’s age. The Act further provides that “sibling,” “grandchild,” and “grandparent” include adoptive, foster and step-relationships, as well as biological relationships.

4. How much leave must an employee receive?
An employee must earn one hour for every 30 hours worked up to 40 hours in a year.

1. An employer with 15 or more employees must provide paid leave.
2. An employer with fewer than 15 employees must provide unpaid leave.

5. How much leave can an employee use in one year?
An employee can use up to 64 hours in a year.

6. Can an employee carryover unused leave into the next year?
Yes, up to 40 hours of leave can be carried over, unless an employer awards the full amount of leave that the employee would earn over the year at the beginning of the year.

7. Who is covered?
A person who regularly works 12 hours or more each week for an employer is covered under the Act. The Act excludes individuals who are independent contractors. The Act also does not apply to an individual who:

1. Performs work under a contract of hire that is determined not to be covered employment under applicable law;
2. Is affiliated with a licensed real estate broker under a written agreement; is affiliated with a licensed real estate broker under a written agreement; is compensated solely on a commission basis; and for federal tax purposes, qualifies as an independent contractor;
3. Is under the age of 18 years before the beginning of the year;
4. Is employed in the agricultural sector on an agricultural operation;
5. Is employed by a temporary services agency to provide temporary staffing services to another person if the temporary services agency does not have day-to-day control over the work assignments and supervision of the individual while the individual is providing the temporary staffing services; or
6. Is directly employed by an employment agency to provide part-time or
   temporary services to another person.

8. Can an employer provide more earned sick and safe leave than required in the law?
Yes, these are minimum standards.

9. If an employer currently provides more than 40 hours of vacation leave or paid time off each year, does the employer have to also provide additional earned sick and safe leave?
No. As long as the leave can be used for the purposes described by the Act, an employer does not have to provide additional earned sick and safe leave.

10. How much does an employer need to pay an employee for earned sick and safe leave used?
The employee must be paid at the same rate and with the same benefits as the employee normally earns. A tipped employee must be paid at least the minimum wage.

11. In what increments can the employee take leave?
Employers must permit employees to take leave in the smallest increment that the employer’s payroll system uses to account for absences. However, an employer may require an employee to take earned sick and safe leave in an increment not exceeding four hours.

12. Does an employer need to provide the employee with a written statement of earned leave?
Yes, but an employer may satisfy this requirement through an online system where the employee can access his or her own leave balance.

13. Can an employer require documentation for use of leave?
Yes, an employer can require documentation from an employee when the employee used the leave between 107th and 120th day of his/her employment and the employer and employee agreed upon the documentation to be provided at the time the employee was hired.

Employers can require employees to provide documentation justifying that an absence occasioned by sick leave was appropriate if the leave was used for more than two consecutive shifts.

14. How long must an employer keep records of earned sick and safe leave accrued by each employee and used by each employee?
Three years.

15. Must an employer pay an employee for unused leave when the employee leaves employment?
No.

16. Must an employer reinstate unused leave if the employee returns to the employer?
Yes, if the employee returns within 37 weeks unless the employer voluntarily paid out the unused earned sick and safe leave on the termination of employment.

17. How does an employer calculate a year to determine leave earned?
A year means a regular and consecutive 12-month period as determined by the employer.

18. How is the law enforced?
The Maryland Commissioner of Labor and Industry is responsible for enforcement. An employee can file a complaint with them. The Act prohibits retaliation and discrimination by employers of employees who in good faith exercise their rights under the Act.

19. What notice are employers required to provide?
The Act distinguishes between foreseeable absences and unforeseeable absences. For foreseeable absences, employers may require that an employee provide notice of not more than seven days before the sick leave will begin. If the absence is unforeseen, the notice should be provided by the employee as soon as practicable. Employers may deny a request for sick and safe leave if the notice is not been provided and the absence would cause an undue hardship to the employer.

20. When do employees begin to accrue sick and safe leave and when can they use it?
Although employees begin accruing sick and safe leave immediately upon employment, employers can require that an employee not use earned sick and safe leave during the first 106 calendar days that an employee works for the employer.

21. Does the Act preempt local paid sick leave laws?
As a general matter, the Act does not preempt or impact laws that provide sick and safe leave benefits that are more generous than those provided under the Act. The Act does preempt local Maryland jurisdictions from passing ordinances on or after January 1, 2017 that create sick and safe leave obligations on private employers. This means that the Montgomery County Earned Sick and Safe Leave Act (“Montgomery County Act”), which went into effect on October 1, 2016 and was amended in November 2016, is not preempted by the Act. The new Act preempts the newly enacted Prince George’s County Earned Sick and Safe Leave Act because it was passed in December 2017 and is scheduled to go into effect in May 2018.

22. What rights does an employer have to prevent abuse of sick and safe leave?
The Act permits employers to establish and enforce a policy that prohibits employees from improperly using sick and safe leave — specifically, exhibiting a pattern of abuse of safe leave and sick leave.

23. Does the employer have an obligation to notify employees of the requirements of the Act?
Yes, there is a requirement under the Act that requires that employers explain the permissible reasons for using leave under the Act, as well as how leave accrues. The Maryland Commissioner of Labor and Industry is directed by the Act to create a poster and sample notice for employers to use to satisfy this compliance requirement.

24. Must an employer modify its existing paid leave policy?
The Act does not require employers to modify any existing paid leave policy if:

1. The policy permits an employee to accrue and use leave under the terms and conditions that are at least equivalent to the earned sick and safe leave provided under the Act; or
2. The paid leave policy does not reduce employee compensation for an absence due to sick or safe leave.

25. How is the number of employees calculated for purposes of the Act?
The number of employees is determined by calculating the average number of monthly employees employed by the employer during the immediate preceding year.

26. Does the Act have any special provisions that apply if an employer is acquired by another employer?
Yes. The Act provides that the new employer must allow all employees of the original employer who remain employed by the successor employer to retain all unused, earned sick and safe leave accrued during employment with the original employer.

27. Are there situations when sick and safe leave does not accrue?
Yes. An employer is not required to allow an employee to accrue earned sick and safe leave during:

1. A two-week pay period in which the employee worked fewer than 24 total hours
2. A one-week pay period if the employee worked fewer than a combined total of 24 hours in the current and 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 and the employee worked fewer than 26 hours in the pay period.

Next Steps

In light of the requirements to the Act, employers should review their existing sick and safe leave or, as the case may be, paid time off (PTO) policies to determine if they satisfy the requirements of the new legislation. For employers that have employees who work in Montgomery County and are eligible for leave under the Montgomery County Act, existing policies will have to be revised to incorporate requirements of the Act that differ from those of the Montgomery County Act to ensure that the policy is fully compliant with both statutes.

Marc Engel is an employment attorney committed to proactively helping for profit and nonprofit employers minimize the risk of employment claims; establish sound and effective employment documents and policies, and resolve local, state, and federal workplace disputes throughout the Washington, DC area. For more information on Maryland sick and safe leave, contact Marc at 301-657-0184 or [email protected].