Maryland’s New Sick and Safe Leave Law

By Ashley L. Ensor and William Hyle, III

This memo gives employers and businesses the highlights of the Maryland Healthy Working Families Act (“Act”) recently passed by the Maryland Legislature requiring earned paid sick and safe leave. The Act is effective as of February 11, 2018. It applies to employers who have 15 or more employees.

What Is Sick and Safe Leave?

  • Sick and safe leave means leave away from work that is provided by an employer under §3-1304 of MD Code, Labor and Employment.
  • Sick leave is taken for treatment, preventative care, or diagnosis of medical and mental illnesses or conditions for both the employee or their family member.
  • Safe leave is absences necessary as a result of domestic violence, sexual assault, or stalking committed against the employee or their family member.

Who Does the Act Affect?

  • Employers with 15 employees, whether full-time, part-time, or seasonal.
  • Employer’s number of employees is determined by the employer’s average monthly number of employees during the immediate preceding year.
  • Employers with 14 or fewer employees are required to at least provide some earned unpaid sick and safe leave.
  • Employees who are not:
    • independent contractors;
    • real estate salespersons, associates and brokers;
    • individuals compensated solely on a commission basis;
    • individuals under 18 years of age;
    • agriculture employees;
    • individuals employed through a temporary service agency;
    • individuals who work less than 12 hours a week for an employer;
    • construction workers covered by a collective bargaining agreement; and
    • individuals called to work by an employer on an as needed basis in a health and human services industry

What is the Rate of Accrual of the Earned Sick and Safe Leave?

  • 1 hour for every 30 hours the employee works that can be used for sick and safe leave purposes.
  • Overtime exempt employees are assumed to work 40 hours a week, unless their normal hours worked weekly is less than 40 hours.

What Limitations Can Be Imposed on Accrual and Time Usage?

  • Employers can limit earning of sick and safe leave to 40 hours a year.
  • Employers can limit use of sick and safe leave to 64 hours in a year.
  • Employers can limit the accrual of sick and safe leave to 64 hours at any time.
  • Employers can prohibit usage of accrued time during the first 106 days of employment.
  • Employers need not allow accrual during a 2 week pay period the employee worked fewer than 24 hours.

What Limitations Can Be Imposed on Carrying Over Unused Sick and Safe Leave to the Following Year?

  • Employers are required to allow employees to carry over accrued time from the preceding year, but with some limitations.
  • Employers can limit the carry over of earned unused sick and safe leave to 40 hours.
  • Employers who frontload employees with 40 hours of sick and safe leave at the beginning of every year need not allow for the carry over of sick and safe leave from the previous year.

Do Employers Need to Pay Out Unused Sick and Safe Leave Time Upon Termination?

  • No.
  • However, if an employee leaves and is rehired within 37 weeks, employers are required to reinstate all sick and safe leave time accrued at the time of departure, unless the employer already paid out the unused earned time.

What Are the Restrictions on the Time Increments Taken by An Employee Under the Act?

  • Employees may take leave in the smallest increment of time the employer’s payroll system uses to account for employee’s work time and absences.
  • However, an employer cannot require an employee to take leave in increments exceeding 4 hours.

What Notice Does an Employee Need to Give an Employer That They Are Taking Leave?

  • Employers may only require advance notice if the leave was foreseeable. If leave is foreseeable, then an employer can require no more than 7 days’ notice.
  • Non-foreseeable leave requires the employee to give the employer notice as soon as practicable while complying with the employer’s notice procedures if those requirements do not interfere with the employee’s ability to take earned sick and safe leave.
  • If an employee fails to provide adequate notice and the absence will cause a disruption, then the employer may deny the request.
  • Employers licensed under Title 7 or Title 10 of the Health – General Article and providing services to developmentally disabled and mentally ill individuals may deny leave, if a replacement for the employee is not available and the absence will cause disruption.

Can an Employer Require Employees Who Request Leave to Find A Replacement for Their Shift?

  • No.

What Documentation Needs to Be Provided to Employees Regarding the Amount of Their Earned Sick and Safe Leave?

  • Employers are required to provide a statement to employees stating the amount of sick and safe leave earned and available.
  • Employers need to either have an open online system with access for the employee to view their time statement or provide this information when wages are paid.

Can an Employer Require Verification That Leave Was Used Appropriately?

  • Yes, if leave was taken for more than 2 consecutive scheduled shifts or was used during the period between the first 107 and 120 days of employment and the employee agreed to provide verification to the employer under terms mutually agreed to at the time the employee was hired.
  • If an employee fails or refuses to provide verification, an employer may deny a subsequent request to take earned sick and safe leave for the same reason.

How Does the Act Affect an Employer’s Current Earned Sick and Safe Leave Policy?

  • If an employer does not have a policy that affords employees at least the equivalent terms and conditions for earning sick and safe leave, that employer must adopt a policy that conforms with the minimal requirements under the Act.
  • However, an employer with a paid leave policy in place that provides accrual at the same rate or greater and allows use for the same purposes as permitted under the Act may retain its current policy.

What Notice Does an Employer Need to Give to Their Employees with respect to Entitlement to Earned Sick and Safe Leave?

  • Employers must notify employees that they are entitled to earned sick and safe leave.
  • Notice requirements include:
    • providing a statement about how leave accrues;
    • reasons leave may be taken;
    • prohibition against employers taking adverse actions against employees who exercise their rights under the Act;
    • prohibition against employees making a complaint, bringing an action, or testifying in an action in bad faith; and
    • the right of an employee to report a violation of the Act to, and file a written complaint with, the Maryland Commissioner of Labor & Industry (“Commissioner”) or to bring a civil action in court.
  • The Commissioner shall make available a poster and model notice employers can use to notify employees.
  • The Commissioner shall develop a model sick and safe policy that an employer may adopt for their employee handbook
  • The Commissioner shall provide technical assistance to an employer if requested for the implementation of the Act.

What Are the Employer Record-Keeping Requirements?

  • Employers have to keep record of earned sick and safe leave accrued and taken for at least 3 years. Noncompliance may result in a civil penalty.

What Sanctions May an Employer Not in Compliance Face?

  • The Commissioner investigates after receiving a written complaint. If the Commissioner finds that a violation occurred within 90 days of the filing of the complaint, the Commissioner will issue an order describing the violation, directing the employer to pay the employee for any amounts unpaid to the employee in violation of the Act, and for any other actual economic damages.
  • The Commissioner has the discretion to award an amount equivalent to 3 times the value of the employee’s hourly wage for each violation and may assess a civil penalty of up to $1,000.00 for each employee for whom the employer is not in compliance with under the Act.
  • An employer found to be out of compliance has 30 days to comply with the order.
  • If an employer does not comply with the order within 30 days, the Commissioner may ask the Attorney General to bring an action on behalf of the employee, with the employee’s consent, against the employer, or the Commissioner may bring an action to enforce the civil penalty.
  • Also, an employee has a right to bring a civil action in court within 3 years after the date of the order for remedies including an award for damages of 3 times the value of the employee’s unpaid earned sick and safe leave, punitive damages, reasonable attorney fees and costs, injunctive relief, or any other relief that the court deems appropriate.
  • An employer may not take adverse or retaliatory action against employees who in “good faith” exercise their rights under the Act.
  • Absence control policies that allow sick and safe leave absences to lead to or result in adverse action against the employee are prohibited.

Are There Any Prohibitions Against Employees Acting in Bad Faith?

  • Yes.
  • An employee who files a complaint, brings a civil action in court, or testifies in bad faith may be prosecuted and, if convicted, be subject to a fine not to exceed $1,000.00.

What Happens When an Employer Acquires Another Employer?

  • An acquiring employer must allow all acquired employees to keep the sick and safe leave earned while working for their previous employer.