Frederick County Society for Human Resources Management

Advancing and Serving the HR Profession in Frederick County Since 1975

Maryland Healthy Working Families Act Went into Effect February 11, 2018

Maryland Healthy Working Families Act Went into Effect February 11, 2018

Lisa Shuster, FCSHRM Legislative Director

 

On January 12th, the Maryland General Assembly overrode Governor Hogan’s veto to pass the Maryland Healthy Working Families Act.  In doing so, Maryland became the ninth state in the nation to require that employers offer paid sick and safe leave to their employees.  As an employer, here’s what you need to know:

 

Who Qualifies and When is it Effective?

As of February 11, 2018, Maryland employers with 15 more employees must offer paid sick and safe leave.  Employers with fewer than 15 employees are required to provide employees with unpaid sick and safe leave. 

The law does not apply to:

  • Employees working fewer than 12 hours a week;
  • Employees who are under the age of 18 at the beginning of the year;
  • Workers employed by a temporary staffing firm, if the firm doesn’t have day-to-day control over workers’ assignments and supervision;
  • Workers employed by employment agencies that provide part-time or temporary services to individuals;
  • Workers providing services on an as-needed basis in a health or human services industry as long as they 1) can reject the shift offered by the employer; 2) are not guaranteed work by the employer; and 3) are not employed by a temporary staffing firm;
  • Agricultural employees;
  • Certain construction industry employees covered by a collective bargaining agreement that waives the right to leave under this law;
  • Licensed real-estate salespersons or brokers, or those affiliated with a licensed broker, who are paid only commission and qualify as an independent contract under federal tax law (this is a different test than under state law); and
  • Independent contractors under Maryland state law

For What Reasons May Employees Use Leave?  

Employee may use their leave for the following reasons:

  • To care for their own mental or physical illness, injury, or condition or that of a family member;
  • To obtain preventive medical care for themselves or a family member;
  • For maternity or paternity leave; or
  • For absences due to domestic violence, sexual assault, or stalking committed against the employee or a family member.

A broad definition of “family” has been adopted and included the following family members:

  • Child, including biological, adopted, foster, step, child for whom the employee has legal or physical custody or guardianship, or acts as a parent, regardless of legal relationship (in loco parentis);
  • Parent, including biological, adopted, foster, or step for the employee or the employee’s spouse, as well as one who was the legal guardian or acted as a parent (in loco parentis) to the employee or the employee’s spouse;
  • Grandparent, including biological, adopted, foster or step of the employee;
  • Grandchild, including biological, adopted, foster, or step of the employee; or
  • Sibling, including biological, adopted, foster or step of the employee.

Accrual and Carryover

Employees must accrue leave at the minimum rate of 1 hour of leave for every 30 hours worked, up to 40 hours of paid leave each year.  Alternatively, employers may choose to grant the entire allotment of leave (40 hours) at the beginning of each year (employers may define the 12-month period that constitutes a year). 

 

Employers using the accrual method are required to allow employees to “carryover” up to 40 hours to the next year, but may limit an employee to using a maximum of 64 hours of leave each year.  If the employer grants the 40 hours at the beginning of the year, no carryover is required.  

 

For new employees, while the leave must begin accruing immediately, employers may require a waiting period of 106 calendar days before the employee may use their leave.

 

Leave must be paid at the employees’ normal wage rate, and leave for tipped employees must be paid at Maryland’s minimum wage of $9.25.  

Leave accrual is not required during:

  • A 2-week period in which the employee has worked fewer than 24 hours;
  • A 1-week period in which the employee has worked fewer than 24 hours in the current and immediately preceding pay period; or
  • A semi-monthly pay period in which the employee worked fewer than 26 hours.

Employer Notice and Verification

In cases where the need to use leave is foreseeable, employers may require employees to provide up to 7 days’ notice.  When the need for leave is not foreseeable, employees must provide notice “as soon as practicable.”  Employers may deny the use of leave if the employee fails to provide the required notice and the absence will cause disruption. 

 

Employers may permit employees may use leave in the smallest increments used by the employer’s timekeeping system, or they may require that leave be taken in increments of up to 4 hours.

 

An employer may request verification that the use of leave was appropriate in the following circumstances:

  • When leave was used for more than 2 consecutive shifts; or
  • Employee uses leave between employee’s first 107 and 120 calendar days of employment.

 

If the employee does not provide verification, the employer may deny subsequent leave requests for the same reason as the earlier, unverified request.  

 

Borrowing Leave, Termination, and Rehire

Employers are permitted to advance or let an employee “borrow” leave that has not yet been accrued or granted.  If the employee is terminated prior to leave being “paid back,” the employer may deduct the advanced amount from the employee’s final paycheck if there is written authorization allowing employer to do so.

 

Employers are not required to payout accrued, but unused, or granted leave unless they choose.  If the employer rehires the employee within 37 weeks following employee’s termination, the employer must reinstate unused leave, unless it was voluntarily paid out to the employee at termination.

 

Employee Notice and Record-Keeping

Employers must provide employees notice that they are entitled to the leave, how the leave is accrued, permitted uses, that adverse action for use of leave is prohibited, and how to report a violation.  The Department of Labor, Licensing, and Regulation has published a sample Employee Notice to help employers comply with the poster requirement of the new law.

 

In addition, employers must provide employees with a written statement each pay period  that provides the amount of leave available to them.  This can includes use of HR portals or electronic systems where employees can access their leave balance online.   

Employers are also required to maintain for at least 3 years records of leave accrued and used by each employee. 

 

Existing Policies and County Laws

Employers are not required to modify their existing paid leave policies if 1) their practices are at least equivalent to the provisions of the new law’s minimum requirements; and 2) their paid leave policy does not reduce compensation as a result of absence due to use of sick or safe leave.  

Montgomery and Price George’s Counties have passed their own versions of paid sick and safe leave laws.  Montgomery County is required to comply with both sets of laws, while Prince George’s County’s law is pre-empted by the new state law, meaning they must comply only with the new state law.   

 

What Should You Do?

Employers should carefully review their existing leave policies and make adjustments to ensure they comply with the many technical requirements of this new law.  If you don’t already provide leave, you should develop appropriate policies and procedures as soon as possible.    

 

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