February 7, 2018

Maryland Enacts Earned Sick and Safe Leave Law (article)

During the 2017 legislative session, the General Assembly of Maryland passed the Healthy Working Families Act (SB 230/HB 1), which was vetoed by the Governor.  One of the first actions of the 2018 legislative session was to override the Governor’s veto, thus, allowing the law (now Chapter 1 of 2018 Session Laws) to take effect.  The law becomes effective on February 11, 2018; though, the legislature is considering a short delay and possibly, modification.  Following is a summary of this law.

Employers subject to the law.  An employer subject to the earned sick and safe leave law is one who directly or indirectly acts in the interest of an employee, including state and local governments.

Eligible employeesEmployees eligible for the earned sick and safe leave benefit are those who work 12 or more hours a week for the employer. Individuals who are ineligible for the benefit include individuals under the age of 18, independent contractors, real estate salespersons or brokers, individuals employed in the agricultural sector or those employed by a temporary services agency.

Type of leave.  Whether the earned sick and safe leave is paid or unpaid is contingent upon employer size.  Employers employing 15 or more employees must provide paid earned sick and safe leave.  Employers employing 14 or fewer employees may provide unpaid earned sick and safe leave.  For determining whether an employer is required to provide paid or unpaid leave, the number of employees of an employer is calculated based on the average number of monthly employees employed, including full-time, part-time, temporary or seasonal, during the preceding year.

Amount of leave.  Employees are entitled to accrue one hour of earned sick and safe leave for every 30 hours worked.

Accrual, Frontload, Cap and Carryover.  Under the law, the amount of accrued sick and safe leave is capped at 40 hours a year. Employees are entitled to carryover up to 40 hours of unused sick and safe leave to next year.  Employers can limit an employee’s accrual and use of sick and safe leave to 64 hours per year.  Alternatively, in lieu of accrual or carryover, an employer can frontload the full amount of paid or unpaid leave at the beginning of the year.

Employees begin to accrue sick and safe leave on the later of 1) the date of hire, or 2) February 11, 2018 (unless the effective date of the law is delayed); and can begin to use the leave following 106 days from the date of hire. Earned sick and safe leave does not accrue in certain instances where the employee works fewer than 24 hours within a particular pay period. 

In lieu of receiving paid sick and safe leave, the employee in mutual agreement with the employer, could work an equal number of alternative hours within a given pay period. Special rules apply for restaurant workers and mental health facility workers.

An employer is not required to provide compensation to an employee for accrued, unused sick and safe leave upon separation from employment. If an employee is rehired within 37 weeks of separation by the same employer, previously accrued leave must be reinstated.

Use of leave.  Earned sick and safe leave can be taken for:

  • One’s own needs, or to attend to the needs of a family member’s mental or physical illness, injury, medical diagnosis or treatment, including preventative medical care;
  • For maternity or paternity leave purposes; or
  • To obtain services or care as a result of domestic violence, sexual assault, or stalking.

For this purpose, a family member includes:

  • A spouse;
  • A child without regard to age or dependency status, whether biological, adopted, foster or stepchild, a legal ward, or a child to whom the employee stands in loco parentis;
  • A biological, adoptive, or foster parent, stepparent, a legal guardian of an employee, or a person who stood in loco parentis when the employee or his/her spouse was a minor child;
  • A grandparent, grandchild, or sibling, including biological, adoptive, step, and foster care relationships.

Coordination with employer’s existing PTO policy.  An employer’s existing paid time off policy that is at least as generous as the requirements of the Maryland law will be deemed to satisfy the law.

Notice Obligations

  • Employee Notification.  When the need for leave is foreseeable, an employer may require an advanced 7-day notification of the need for leave. When the need is unforeseeable, the employee must notify the employer as soon as practicable, in accordance with the employer’s policy or procedures for requesting leave. An employer may deny leave if the employee fails to give notice of the leave, or the absence would be deemed to be disruptive to the employer. An employer may require documentation that the employee’s use of sick leave was for an authorized purpose in certain circumstances.
  • Employer notice and workplace posting obligations.  Employers are required to notify employees of their right to earned sick and safe leave.  Such notification must include a statement of how leave is accrued, the permitted uses of leave, a statement that the employer will not retaliate against employees for using leave, together with information about the employee's right to file a complaint. Employers must also provide employees with a written statement of accrued earned sick and safe leave each time wages are paid; or, maintain an online system where employees may access their own earned leave balances. The Maryland Commissioner of Labor and Industry is delegated to create and make available a poster and model notice for employer’s use, as well as provide a model sick leave policy that an employer may use in its employee handbook or other policy.

Prohibition of Retaliation and Discrimination.  An employer is generally prohibited from taking any employment-related action or retaliation against employee’s right to use accrued earned sick and safe leave. This would include discharging, demoting or suspension of employment, or in the event an individual files a complaint with the Maryland Commissioner of Labor and Industry.

Record retention.  Employers are required to keep sick and safe leave records, including each employee’s accrual and use of the leave, for a minimum of three years.

Coordination with Maryland’s local government paid sick leave ordinances.  This law includes a provision that prohibits local jurisdictions from imposing additional paid sick leave provisions on employers, other than the local jurisdiction itself, beginning on or after January 1, 2017; however, amendments to existing sick leave laws enacted prior to January 1, 2017 remain permissible. Therefore, the state law must be coordinated with Montgomery County’s paid sick leave ordinance, unless the County government modifies or amends its ordinance.  It remains to be seen whether this law will need to be coordinated with Prince George’s paid safe leave ordinance, which is to take effect on May 24, 2018 (see last month’s Benefit Beat article for a summary of this ordinance).

The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein. 

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