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Maryland Employers Will Be Required to Provide Paid Sick Leave

On January 12, 2018, the Maryland General Assembly voted to override Governor Hogan’s veto of House Bill 1, the “Maryland Healthy Working Families Act.”  Under the new law, Maryland employers are required to provide “Earned Sick and Safe Leave” to their employees.  At present, the law is scheduled to go into effect on February 11, 2018 unless the General Assembly chooses to delay its implementation, possibly by 90 days.

This new paid sick and safe leave law applies to all employers in Maryland (including a unit of State or local government), regardless of size.  Employers with 15 or more employees will be required to provide employees with paid leave, and employers with fewer than 15 employees will be required to provide unpaid leave for those same reasons.  The number of employees is calculated based on the average monthly number of all employees (including full-time, part-time, temporary, and seasonal) who were employed during the immediately preceding 12 months.

Employers must allow employees to earn sick and safe leave at a rate of at least one hour for every 30 hours worked, up to 40 hours a year.  Employees may carry over earned sick and safe leave from year-to-year, although the carryover amount may be capped at 64 hours. The total amount of sick and safe leave that an employee may actually use in a year may also be capped at 64 hours.  Employers may use Paid Time Off (“PTO”) plans to meet their obligations so long as their PTO plans comply with the requirements of this new law.

Employees may use leave for the following reasons:

  • Care or treatment of the employee’s or a family member’s mental or physical illness, injury, or conditions;
  • Preventive medical care for the employee or family member;
  • Maternity or paternity leave; and
  • Absences that are necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.

(A “family member” includes children, grandchildren, parents, legal guardians, spouses, in-laws, step-family relationships, siblings, and grandparents.)

The following employees are NOT covered under the law:

  • Employees who regularly work less than 12 hours a week for the employer;
  • Certain employees who are employed in the construction industry and are covered by a bona fide collective bargaining agreement that waives these requirements; and
  • Certain per diem employees in the health or human services industry
  • Independent contractors
  • Licensed real estate salesperson or brokers
  • Those employees under the age of 18 before the beginning of the year
  • Temporary staffing agency employees

Severe penalties for noncompliance:

An employer that fails to keep accurate records or refuses to allow the commissioner of DLLR to inspect a record kept under this law shall be presumed to have violated this law.

In addition, an employee can file a written complaint of a violation of this law with the commissioner of the state Department of Labor, Licensing and Regulation (DLLR). The DLLR will investigate within 90 days and attempt to resolve any issue informally through mediation. If the commissioner finds a violation and is unable to reach informal resolution, the commissioner will issue an order that describes the violation and directs payment for the leave and economic damages. The commissioner may also direct the payment of up to three (3) times the value of the employee’s hourly wage, and may also 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 commissioner’s order within 30 days, the commissioner may bring an action against the employer on behalf of the employee and may also bring an action to seek enforcement of any civil penalty order.

In addition, the employee may bring a civil action in court to enforce the commissioner’s order within three (3) years after the date of the order. If the employee’s court action is successful, the court may award three times the value of the unpaid leave, punitive damages, attorneys’ fees and costs, and may order injunctive relief or other relief as deemed appropriate.

What should an employer do now?

Maryland employers should take steps now to prepare for the new law in case the February 11 effective date is not extended.

  • Review your existing sick leave or paid time off policies to ensure that they are in compliance with the new law
  • Make sure all employees are earning sick and safe leave – notice and documentation are required
  • Review payroll, recordkeeping and administrative procedures
  • Ensure notice requirements are met

Please note that for employers who have employees in Montgomery County, they must comply with the requirements of both the state and local laws.  There are some slight variations, so please review your policies in light of both state and local laws.

Cheryl Brown is an attorney with the Business and Transactional practice group at Davis, Agnor, Rapaport & Skalny, LLC. For questions about this article or your own labor and employment law matters, please do not hesitate to contact Cheryl at 410.995.5800 or cbrown@darslaw.com.