Under the Act, an employee earns at least one hour of paid sick and safe leave for every 30 hours he or she works. Maryland joins eight other states – Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, Washington and Rhode Island – plus smaller jurisdictions that include the District of Columbia and Montgomery County, MD that have enacted paid sick leave laws.
Who’s affected? The Act applies to all Maryland employers.
Who has to offer paid leave? The number of employees is calculated by using the average monthly number of all employees (including full-time, part-time, temporary, and seasonal) who were employed during the immediately preceding 12 months.
The Act does not apply to workers who:
- Regularly work fewer than 12 hours a week;
- Are under the age of 18;
- Are independent contractors;
- Work in the agricultural sector on an agricultural operation; or
- Work on an as-needed basis in the health or human services industry.
The Act also carves out exceptions for employers in the construction industry that are parties to collective bargaining agreements. In those instances, the employer and the union may agree expressly to waive the Act’s requirements. The Act also does not impose any requirements on employers with existing collective bargaining agreements entered into before June 1, 2017, for the duration of the contract term.
Who has to offer unpaid leave? Employers with up to 14 employees must provide unpaid earned sick and safe leave.
How does it work? The Act requires employers to offer eligible employees the ability to accrue up to 40 hours of paid leave a year. Employers must offer leave accrual at the rate of one hour for every 30 hours worked or award the entire 40 hours at the beginning of each year. Additionally, if the employer uses the accrual method, employees can carry over up to 40 hours of paid leave a year. Employers can cap accrual and use of paid leave at 64 hours per year. Employers are not required to pay out unused, accrued sick leave upon an employee’s termination. However, if the leave is not paid out and the employee is subsequently rehired within 37 weeks, the employer must reinstate the unused leave.
In what situations can the leave be used? Employees eligible under the new law are entitled to use earned sick and safe leave to:
- Care for or treat the employee’s mental or physical illness, injury or condition
- Obtain preventive medical care for the employee or employee’s family member
- Care for a family member with a mental or physical illness, injury or condition for maternity or paternity leave
- Absences due to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member
- Obtain services from a victim services organization
- Obtain legal services
Does the Act allow for restrictions? Employers can impose some restrictions on employee use of the sick/safe leave. For example, employers can ban the use of such leave during an employee’s first 106 calendar days of employment. Also, employers can require seven days’ advance notice when the need for the leave is foreseeable and can refuse to pay out accrued, but unused, leave at the time of termination or resignation. Employers can also limit the amount of sick/safe leave that an employee can carry over to the next year to 40 hours and can cap the accrual and yearly use of the sick/safe leave to 64 hours. Further, in certain circumstances, employers can require verification of the use of the sick/safe leave if abuse of the leave is suspected.
How are employees to be notified of the Act? Covered employers must notify employees of their rights under the Act, and the state Commissioner of Labor, Licensing and Regulation is expected to develop a model notice that employers can use. Additionally, employees must be given a detailed statement each pay period explaining the status of the accrued and available sick/safe leave. Employers are also required to maintain the records of individual employee leave accrual and usage for three years, and the records are subject to government inspection.
How is the Act enforced? Employees can file complaints alleging violations of the Act with the Department of Labor, Licensing and Regulation (DLLR), and can also bring civil actions for alleged violations, including retaliation for using accrued leave. Potential awards include treble damages, punitive damages, attorney fees and injunctive relief.
How does the Act impact sick leave laws passed by Maryland localities? The Act preempts local jurisdictions from enacting new paid sick leave laws after January 1, 2017; however, it does not preempt localities from amending paid sick leave laws that were enacted before January 1, 2017. Therefore, Montgomery County, Maryland’s paid sick leave law (which provides more generous benefits than the Law in some respects) will remain effective, however, Prince George’s County’s law will not.
What’s next and what steps should employers be taking? To prepare for the February 11, 2018, effective date of the Act, employers should immediately review their current leave policies to determine whether any revisions are required. Payroll systems should be reviewed to ensure that the systems account for the accrual, usage and carry over of sick/safe leave and that the leave records are maintained. Employers should provide a method for informing employees of their available leave each pay period if not using the payroll system for leave accrual. Notices of employee rights must be developed, in the absence of one from DLLR, and provided to employees. At the same time, employers should keep a close eye on the Maryland legislative process. There is a possibility that the Maryland General Assembly may delay the effective date of the bill until April rather than February, and that additional amendments may be passed.
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