Maryland Passes the Healthy Working Families Act

Maryland workers now enjoy greater access to “sick and safe” leave. Effective February 11, 2018, the Maryland Healthy Working Families Act (the “Act”) requires employers to allow employees to use earned sick and safe leave:

• 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; and
• for specified circumstances due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.

I. What Does the Act Require?

Originally introduced during the 2017 Legislative Session, the Act was passed in both houses of Maryland’s General Assembly, but was subsequently vetoed by Governor Hogan. The House of Delegates and the Senate overrode the veto in January 2018.

The Act requires employers to have a sick and safe leave policy under which covered employees earn at least one hour of sick and safe leave for every 30 hours worked (employees regularly working fewer than 12 hours per week will not accrue sick and safe leave.).  As discussed more fully below, whether the leave is paid or unpaid depends on the number of employees the employer employs.

Under the Act, leave began accruing on January 1, 2018, and leave hours are paid at the same rate that the employee normally earns (or for tipped employees, the relevant minimum wage).  Even though leave began accruing on January 1, 2018, the Act allows employers to prohibit employees from using their leave for the first 106 calendar days of employment.  Unused leave may be carried over from year to year, but employers may cap the amount of leave that can be carried over at 40 hours per calendar year.

Employers with 15 or more employees must allow employees to accrue one hour of paid leave for every 30 hours worked.  Employers with 14 or fewer employees must allow leave to accrue at the same rate, but the leave can be unpaid.  Importantly, to calculate the number of employees, the employer must look at the average number of employees per month over the previous calendar year. The calculation includes every employee, not merely those entitled to sick and safe leave.  So, an employee who regularly works ten hours per week is not entitled to accrue leave, but must be counted as an employee when determining whether the leave accrued by eligible employees under the company’s policy is paid or unpaid.

II. How Does the Act Impact You?

Right to Notice and Verification from Employee

Employers have the right to demand notice for leave taken under the Act. If the event requiring leave is foreseeable (for example, a scheduled surgical procedure), the employer may require seven days’ notice. If the leave is not foreseeable, the employee must provide notice “as soon as practicable.” “Practicable” is not defined in the Act. Courts will likely liberally construe this term in favor of the employee, given that employers generally lack first-hand knowledge of what an employee’s medical condition is or how “practicable” notice to his employer was at the time. Notably, though, if the employee fails to give the notice, the employer may deny the sick and safe leave request, if the employer can establish that the leave would “cause a disruption” to the employer’s business.

Additionally, if an employee will miss more than two consecutive shifts, the employer may require verification that the leave was taken in accordance with the Act. Further, an employer may ask for verification if a new employee is taking leave between days 107 and 120 of their employment. However, to ask for verification during this period, the employee and employer must have a written agreement that the employee will provide verification in that period. Therefore, it would be wise for employers going forward to add sections to new-hire packets and/or employee handbooks to ensure full compliance with the verification provisions. Note that where employee refuses to provide verification, the only consequence is that the employer may refuse a later request for the “same reason.” This indicates that the employer must still allow the leave that was already taken, but may refuse future leave requests.

Employer’s Notice and Recordkeeping Requirements

Under the Act, employers must notify employees of their right to earn safe and sick leave. Maryland’s Department of Labor, Licensing, and Regulation (“DLLR”) has provided an employee notice poster for places of business, as well as model policies for employee handbooks, all available on its website. See https://www.dllr.state.md.us/paidleave/. Employers must also provide a system for the employees to verify the balance of their accrued leave. One method of fulfilling this requirement is by ensuring the balance of all accrued leave is included on each pay stub.

Employers are required to keep records reflecting all safe and sick leave earned by each employee over the prior three-year period, and all safe and sick leave used by each employee during the same time. If an employer fails to do so, and DLLR initiates an investigation, the failure to keep accurate records will create a rebuttable presumption that the employer violated the provisions of the Act

The rebuttable presumption created by a failure of record-keeping is a major problem for alleged violations of the Act. An investigation is initiated when an employee reports a potential violation to DLLR. DLLR will then initiate a mediation session between the employer and employee. If that mediation is unsuccessful and DLLR finds the employer violated the Act, the Commission may order up to three times the amount of unpaid leave to the employee, and may also order the employer to pay up to a $1,000 civil penalty for each employee for which the employer is in violation. Accordingly, if one employee alleges a violation, but DLLR finds out that records are insufficient for all employees, the $1,000 civil penalty could grow exponentially.

Termination/Leave Use

 If an employee quits or is fired with accrued leave unused, employers are not required to compensate the employee for the unused leave. However, if the employee is thereafter rehired within 37 weeks, employers must reinstate the accrued leave.

Advance Leave

An employer may, by written agreement, allow employees to use leave that has not yet been earned, and reduce the employee’s wages accordingly if the employee quits or is fired before earning sufficient leave to “repay” the advance.  Employers are not required to provide advance leave, but must – as with any deduction from an employee’s wages – ensure that the deduction has been previously authorized in writing by the employee.  In addition, advance leave must be offered, if at all, on a non-discriminatory basis.  That is, it need not be offered to all employees, but it cannot be offered or withheld based on membership in any protected class.

Retaliation

 Employers may under no circumstances take any retaliatory action for using leave, or for an employee reporting (in good faith) an alleged violation of the Act.