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Maryland Healthy Working Families Act

As of February 11, 2018, employers of fifteen (15) or more employees in Maryland are required to provide paid Sick and Safe Leave to their Maryland employees, paid at the same rate of pay as the employee normally earns.  Employers with less than fifteen (15) employees are required to provide unpaid Sick and Safe Leave to their employees under all the same conditions as employers who are required to provide paid Sick and Safe Leave.

Under the Maryland Healthy Working Families Act (the “Act”), Sick and Safe Leave accrues at a minimum rate of one (1) hour for every thirty (30) hours worked; however, the Act provides employers with the option at the beginning of each year of awarding to its employees the full amount of Sick and Safe Leave that could be accrued annually.  There are several scenarios, differentiated by pay periods, where an employer is not required to allow an employee to accrue Sick and Safe Leave. These scenarios include: (1) when an employee works less than twenty-four (24) hours in a two-week pay period; (2) in instances of one-week pay periods, when an employee works less than twenty-four (24) hours combined in the current and immediately preceding pay period; and (3) when an employee works less than twenty-six (26) hours in a pay period where the employee is paid twice a month.

The accrual of Sick and Safe Leave is capped at forty (40) hours annually and an employer is not required to allow an employee to use more than sixty-four (64) hours of Sick and Safe Leave in a year.  Unused, earned leave is carried over to the following year, however, an employer is not required to allow an employee to carry over more than forty (40) hours of unused Sick and Safe Leave per year. If the employer chooses to award the full amount of leave at the beginning of the year, then that employer doesn’t have to allow any unused Sick and Safe Leave to be carried over from one year to another.

For the purpose of determining if an employer is required to provide paid or unpaid Sick and Safe Leave, the number of employees is determined by calculating the average monthly number of employees employed by the employer in the preceding year.  Regardless of whether or not an employee is eligible for Sick and Safe Leave under the Act, all employees are included when computing the average monthly calculation.  

The Act does not generally apply to the following categories of individuals:

  1. Employees who regularly work less than 12 hours per week.
  2. Employees in the construction industry who are covered by a collective bargaining agreement which expressly waives the Act.
  3. Employees who work in a health or human service industry who are called on by the employer on an as-needed basis and have the discretion to reject the shifts offered by the employer.  For the exclusion to apply the employees must have no guarantee that the employer will offer them any shifts and the employee must also not work for a temporary agency.
  4. Individuals who are determined to be independent contractors by law.
  5. Individuals who are real estate salespeople or brokers.
  6. Employees who are under the age of 18 years old at any time during the year.
  7. Employees working in agricultural operations.
  8. Employees employed by staffing agencies to perform services for another person.

An employer does not have to allow an employee to use any Sick and Safe Leave during the first one hundred six (106) calendar days of employment. If a former employee is rehired within thirty-seven (37) weeks after leaving the employment, for any reason, then the employer is required to reinstate any unused Sick and Safe Leave that accrued at the time the employee left employment, unless that earned leave was voluntarily paid out by the employer.  That said, the Act does not require an employer pay out unused accrued Sick and Safe Leave upon an employee’s termination of employment. In a merger or acquisition scenario, all employees employed by the company acquired who remain after such transaction shall retain all unused earned Sick and Safe Leave accrued during their employment prior to the transaction.

If an employer chooses, it may allow an employee to use Sick and Safe Leave that has not yet been accrued. If an employee’s employment terminates with a negative balance of Sick and Safe Leave, the employer may only deduct the negative balance from the employee’s wages at the time of termination if both parties consented to the deduction in writing. The Act does not preempt or limit any other law that provides for Sick and Safe Leave benefits that are more substantial than those provided for in this Act, nor does it affect any workers compensation benefits.

An employer may choose to, and should, draft and implement a policy that prohibits the improper use and abuse of Sick and Safe Leave. If an employer already has a paid time off policy in place, this Act will not require any modification of the current policy so long as the current policy is equivalent or better than the policies set forth in the Act. The term “equivalent” to this Act means leave under the employer’s current policy must be paid at the same rate of pay as the employee normally earns, and the employee must be able to use the leave for the same purposes as set forth in the Act.  This is particularly important because the leave earned under this Act may be used by an employee for more than just the traditional illness generally associated with the term “sick leave.”  Sick and Safe Leave under the Act may be used for the following:   

1) to care for or treat the employee’s mental or physical illness, injury or condition;

2) to obtain preventative medical care for the employee or employee’s family member;

3) to care for a family member with a mental or physical illness, injury, or condition;

4) for maternity or paternity leave; or

5) the absence from work is necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member and the leave is being used by the employee to obtain medical, mental, victim or legal services.

The Act requires notice from the employee should the need to use Sick and Safe Leave arise, or if the need to use it in the future is foreseeable.  If notice is not provided by the employee under the Act and the employee’s absence will cause a disruption to the employer, the employer may deny the leave request.  The Act also places record keeping requirements on the employer, requiring employers, even employers who have under fifteen (15) employees, to maintain and keep records for three (3) years minimum of the Sick and Safe Leave earned and used by each employee. Failure to comply may result in a civil penalty.

Failure to comply with this Act has the potential for real penalties to the employer.  In addition to the fines, should the matter proceed to civil litigation and the employee prevails, the employer may be liable for three (3) times the amount of unpaid earned Sick and Safe Leave, punitive damages, an award of attorney’s fees and injunctive relief.

               

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