Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on the size of the employer. Employers with 15 or more employees must provide up 40 hours of paid sick leave per year.  Employers with 14 or fewer employees must provide employees the same amount of unpaid sick leave.

Accrual:

An employee begins accruing leave immediately upon starting work.  Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, and the accrual rate is the same whether leave is paid or unpaid.  Additionally, employers must allow employees to carryover at least 40 hours of earned sick leave from one year to the next.  However, employers may institute the following limits on accrual and use:

• Annual Accrual Cap: 40 Hours
• Annual Cap on Use: 64 Hours
• Total Accrual Cap: 64 Hours

Additionally, if an employer chooses to “frontload” their employees’ leave by providing all 40 hours at the beginning of each year, the employer need not allow any carryover.  In other words, by frontloading leave, each employee would begin every year with 40 total hours of leave regardless of their use of leave in the previous year.

Using Sick Leave:

Employees may use accrued leave for a wide variety of reasons, including:

• their own or a family member’s mental or physical healthcare, including the need for preventive medical care;
• maternity or paternity leave; or
• seeking medical, mental health, or legal services as a results of domestic violence, sexual assault or stalking committed against the employee or a family member.

Employers may require employees to work for 106 calendar days before using leave. Additionally, employers may require seven days’ advance notice from an employee when leave is foreseeable.  Regardless of whether the need for leave is foreseeable, employers can require employees to comply with established procedures for requesting time off, such as a policy that any employee who needs leave unexpectedly must call their supervisor or Human Resources as soon as possible.

Preemption

One employer-friendly aspect of the Act is that it preempts Maryland counties and local governments from passing their own paid sick leave laws.  Therefore, Maryland employers will not face the often daunting mosaic of state and local leave laws that exist in other states.  However, this preemption is prospective, and does not apply to the Montgomery County ordinance that predates the Act. Any employer in Montgomery County must ensure that their paid sick leave policy complies with both state and local law.

Notice to Employees & Record-Keeping Requirements

Employers must provide their employees with notice of their right to accrue and use earned sick leave.  The Act requires the Department of Labor, Licensing and Regulation (“DLLR”) to draft a model notice and make it available online.  However, at this time, the DLLR has not published a model notice, and it is unclear when it will do so.  Employers should consult their employment counsel regarding the appropriate way to provide notice.

Additionally, employers must retain records related to the accrual and use of sick leave for three years.  All records are subject to inspection by the DLLR.

What Should Employers Do?

Employers should immediately review and, if necessary, revise their existing paid sick leave policies.

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