by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
& Gail Cohen, Esq. - Assistant General Counsel,
January 18, 2018
On January 12, 2018, Maryland became the ninth state to require employers to provide paid sick and safe leave to employees (joining Arizona, Connecticut, California, Massachusetts, Oregon, Vermont, Washington DC and Washington State). The Healthy Working Families Act (“HWFA”) has had a tortured legislative history. The bill passed in the Maryland legislative session early 2017 but then was vetoed by the Governor in May 2017. The veto was overridden the Maryland legislature on January 12th.
Here is a summary of the HWFA’s provisions:
|Effective Date||February 11, 2018 (30 days after passage)|
|Covered Employers||Employers with 15 or more employees must provide paid “sick and safe leave” (those with 14 or fewer employees are also required to provide such leave, though it is unpaid).|
|Eligible Employees- exclusions||The Act provides a number of exclusions to “employees” who are eligible to earn HWFA, including temporary employees (i.e. those employed by a staffing agency), and those who regularly work less than 12 hours per week.|
|Accrual Rate and Caps||Employees employed as of January 1, 2018 accrue 1 hour of paid sick and safe leave for every 30 hours worked. Employees hired thereafter begin to accrue paid sick and safe leave from and after their date of hire, in accordance with the hours they work.|
Employers can cap accrual to 40 hours in a year (any 12-month period as the employer defines it). An employee cannot accrue more than 64 hours of paid leave at any time.
|Limits on Employee Use||Accrued paid sick and safe leave cannot be used during the first 106 calendar days for which the employee works for the employer.|
Employers can limit employees’ use to a maximum of 64 hours in a year.
|Purposes for which HWFA Hours may be Used||For the care or treatment of the employee’s own 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 or
If the employee or employee’s family member is a victim of domestic violence, sexual assault or stalking, leave may be taken:
o To obtain medical or mental health treatment
o Services form a victim services organization
o Legal services or attending proceedings related to orresulting from domestic violence, sexual assault or stalking
o Or during the time that the employee has temporarilyrelocated as a result of domestic violence, sexual assaultor stalking.
|Covered “family members”||Child (biological, adopted, foster or stepchild of the employee, a child for whom the employee has legal or physical custody or guardianship and a child for whom the employee stands in loco parentis).|
Parent (biological, adopted, foster or stepparent of the employee or employee’s spouse, the legal guardian of the employee or an individual who acted as a parent or stood in loco parentis to the employee or the employee’s spouse when they were a minor).
Grandparent (biological, adoptive, foster and step)
Grandchild (biological, adoptive, foster and step)
Sibling (biological, adoptive, foster and step)
|Employee Notice||Employees must give advance notice of using HWFA hours if the need for such leave is foreseeable. The employer can require 7 days’ advance notice.|
If not, the employee still must provide as much notice as is practicable under the circumstances and can require the employee to follow normal notice and reporting procedures for other leaves or time off.
|Employer Requirements Notice of Accrual and Balance||Employers are required to provide employees with information on paystubs of the amount of HWFA accrued and statement amounts used. This may be satisfied via electronic means.|
|Employer Posting Obligations||The Maryland Department of Labor will post a model notice on its website for employers to use to apprise employees of their rights under HWFA. The notice is not yet available.|
|Employer Record Retention Requirements||Employers are required to retain records of HWFA accrued and used by each employee for at least 3 years.|
|Payout on Termination of Employment||Employer is not obligated to pay accrued but unused HWFA leave upon termination of employment.|
|Employer Prohibitions||Employers are prohibited from taking adverse action (demotion or discharge, or threats of either) or retaliating against an employee who has exercised his or her rights under HWFA, or interfering with an employee’s exercise of those rights.|
|Enforcement||HWFA vests the Commissioner of the Maryland Department of Labor with enforcement authority, including the ability to assess penalties such as payment of the monetary value of any unpaid earned HWFA, as well as an additional amount up to three times that sum and civil penalties of up to $1,000 per violation.|
An employee may bring a civil action to enforce an order from the Commissioner if the employer does not comply. The employee has 3 years from the date the order was entered to file suit.
Compromise legislation has also been introduced, aptly named “Paid Leave Compromise Act” (MD H 98/S135), which may slightly alter some of the Act’s provisions. The Radar will keep readers apprised!